Introduction: Lord Neuberger of Abbotsbury

Lord Neuberger of Abbotsbury—The Right Honourable Sir David Edmond Neuberger, Knight, a Lord Justice of Appeal, having been appointed a Lord of Appeal in Ordinary and created Baron Neuberger of Abbotsbury, of Abbotsbury in the County of Dorset, for life—Was, in his robes, introduced between the Lord Bingham of Cornhill and the Baroness Neuberger.

Waterways: Tourism

Lord Lee of Trafford: asked Her Majesty's Government:
	Whether they considered the implications for United Kingdom tourism before deciding to reduce the budget of British Waterways.

Lord Davies of Oldham: My Lords, the lead department for inland waterways in England and Wales is Defra. While there have been no specific discussions on the matter that the noble Lord raises, Defra and DCMS Ministers do speak from time to time on tourism issues.

Lord Lee of Trafford: My Lords, I declare an interest. British Waterways is a member of the Association of Leading Visitor Attractions of which I am chairman. Very positive developments with our waterways have taken place in recent years. There has been a massive contribution towards regeneration of many cities and, on tourism, more than 100,000 hire-boat holidays. Given the tremendous potential, should not the Government put more money into waterways rather than less?

Lord Davies of Oldham: My Lords, the Government have put substantial sums into waterways—more than £500 million since 2000. That has helped to realise the benefits that the noble Lord identified in terms of the rural part of waterways and, as he rightly says, the regeneration of many of our major cities to the improvement of waterways. We look towards British Waterways to carry on that important work.

Lord Corbett of Castle Vale: My Lords, given that the income of British Waterways has trebled in the past seven years and that almost half of its income last year was from trading activities, would it not be an idea to consider making it a self-financing agency by giving it a dowry of some of the land alongside its banks? It could become self-financing and make better use of its many assets.

Lord Davies of Oldham: My Lords, that is an interesting and radical idea. The Select Committee in the other place is looking at the future of British Waterways and I do not doubt that my noble friend will take steps to draw the committee's attention to his radical proposal.

Lord Elton: My Lords, can the Minister tell us what he expects us to infer from his substantive Answer, and whether that would be correct?

Lord Davies of Oldham: My Lords, I hope I give answers that lead to a common understanding across the House of what is intended in them. Suffice it to say that although the Question is about tourism and is therefore accurately and appropriately addressed to the Minister responsible for tourism in this House, budgetary decisions on British Waterways are the responsibility of another department.

Lord Elton: My Lords, at the risk of appearing tedious, does the noble Lord realise that all Ministers answer for the whole Government, and the fact that a particular Minister belongs to a certain department has no bearing on his access to the knowledge required?

Lord Davies of Oldham: My Lords, of course I understand the point entirely. I was merely describing factually the ministerial line of responsibility in this area.

Lord Brooke of Sutton Mandeville: My Lords, if the Ministers in the two departments speak to each other, even on this very day, what was the reason for the reduction in the budget?

Lord Davies of Oldham: My Lords, Defra has had its budget re-evaluated this year for a reduction of 7 per cent. Although it has been widely reported that the budget cut for British Waterways is £9 million, it is in fact £3.9 million, which it was felt would be appropriately attributable to it.

Baroness Trumpington: My Lords—

Lord Trimble: My Lords—

Lord Rooker: My Lords, it is the turn of the Cross Benches.

Lord Trimble: My Lords, is it not the case that the cuts were made because of a lack of year-end flexibility, which is code for saying that the Treasury decided it was going to claw a large sum of money out of Defra? Is this not highly unfortunate from the point of view of Defra generally and in particular with regard to British Waterways, in respect of which I should have declared an interest as a boat owner?

Lord Davies of Oldham: My Lords, all government departments have organisations which derive substantial resources from them. Those organisations—particularly one as enterprising and constructive as British Waterways has been in recent years—have ambitious plans for development, which cannot necessarily be funded in the immediate year.

Baroness Trumpington: My Lords—

Lord Berkeley: My Lords, how does the river Lea fits into the tourism and navigation plans for the Olympic Games? Will he confirm that there is a plan to put a £50 million lock across the end of the river to make it better for tourism and for the Olympics by bringing in materials and so on? How is that £50 million to be spent and how much of it will come from British Waterways ?

Lord Davies of Oldham: My Lords, the river Lea will certainly play a significant part in the development of not just the main Olympic site but also the canoeing and kayaking site further upriver in Broxbourne in Hertfordshire. The river Lea will have an important role to play in the development of our Olympic facilities and will add to the attractiveness of the site. I should add that we are also guaranteeing that a certain amount of the freightage necessary for developing the site will be water-borne.

Baroness Trumpington: My Lords, does the Minister agree—

The Earl of Glasgow: My Lords—

Baroness Trumpington: My Lords, I have tried to speak so often that I am jolly well going to go on. First, does the Minister agree that certain goods could be well transported on our canals and inland waterways, and thus taken off the roads, and that more commercial traffic might be a great help financially to our canals? Secondly, do the authorities hold conversations with the French, who seem to make very good commercial use of their canals?

Lord Davies of Oldham: My Lords, I am grateful for the opportunity to reply to the noble Baroness, who is always constructive on these matters. It will be recognised that British Waterways has difficulty making comparisons directly with French waterways, which are constructed on a much wider scale. We operate with much narrower boats, which presents a problem with freight traffic. Nevertheless, in its forward plans British Waterways looks toward an expansion of freight. Anything that contributes in those terms helps to reduce congestion on our crowded roads and, to a certain extent, our railways.

The Earl of Glasgow: My Lords, is the Minister aware that the Scottish Executive, unlike the British Government, are fully supporting Scottish waterways? Do the English need some major visitor attraction, like the Falkirk Wheel, to persuade them how important waterways are to tourism?

Lord Davies of Oldham: My Lords, Scotland has responsibility for its own waterways and, as the noble Earl says, certain advantages. However, it will also be recognised that, in England, substantial parts of our waterways are greatly attractive. One thinks of, for example, the gorge in Shropshire, which is part of the origins of the Industrial Revolution and is, of course, close to a waterway.

Museums and Galleries: Funding

Lord Sheldon: asked Her Majesty's Government:
	What plans they have for the future funding of museums and galleries.

Lord Evans of Temple Guiting: My Lords, DCMS funding for sponsored museums will increase to £336 million by 2008, a real terms increase of 28 per cent since 1997. Renaissance in the Regions funding will increase by 40 per cent next year to £45 million. A key outcome of this investment is free entry to national museums, which has led to a 40 per cent increase in visits. Funding for museums from 2008 is being considered as part of the Comprehensive Spending Review.

Lord Sheldon: My Lords, I thank my noble friend for that reply. However, his department covers the two widely different activities of sport and the arts. What effect will the increasing cost of the 2012 Olympics have on government spending on the arts?

Lord Evans of Temple Guiting: My Lords, there have been recent rumours that the cost of the Olympics will have an impact on arts funding. As I said in response to a question last week, there is an overrun on funding for the Olympics and various methods are being looked at to bridge the gap, but it is unlikely that the arts will suffer as a result.

Baroness Bonham-Carter of Yarnbury: My Lords, there is no question that one great success of the Government in this area has been the Renaissance in the Regions programme. In areas where it has been fully funded, according to the Museums Association, attendance by schoolchildren has increased by 120 per cent. The Minister mentioned the forthcoming funding, but only three out of nine regions are receiving full funding. Can he assure the House that the whole of the funding will be forthcoming and not adversely affected by the upcoming Comprehensive Spending Review?

Lord Evans of Temple Guiting: As I said, my Lords, £147 million was allocated to Renaissance in the Regions, which, as the noble Baroness said, has been a huge success. Government investment rose from £10 million in 2002 to £45 million in the next financial year. My view is that the initiative has been such a success that its funding is very likely to continue.

Lord Sterling of Plaistow: My Lords, is the Minister aware that, as we sit here today, detailed discussions are going on at the DCMS with the museums and galleries, including my own—I am chairman of the National Maritime Museum and the Royal Observatory—to suggest cuts of 5 per cent, which will equate to 8 per cent or more with inflation. Can the Minister assure us that that will not take place?

Lord Evans of Temple Guiting: My Lords, I cannot assure the noble Lord that that will not take place because it is part of the next spending review, and the Treasury has asked all government departments to look at possibilities for reduction, as it will be a quite tight review. The DCMS recognises that there are funding problems, particularly for acquisitions, and it has established a forum for national directors, which met once last year and is due to meet in a few weeks' time, to discuss innovative ideas for raising more money for museums and galleries.

Lord Howarth of Newport: My Lords, my noble friend rightly took pride just now in describing the substantial increases in funding the Government have provided for museums and galleries. Does he agree that there can be no case for not at least sustaining present levels of grant in aid? Does he also agree that, since the National Heritage Memorial Fund was created to honour men and women who have died in the service of our country by enabling museums and galleries to make important additions to our national collections, it would be gracious if the Government, having committed themselves some time ago to increasing their grant to the fund to £10 million this year, would now go even further and set out a path to doubling that grant to £20 million, thus bringing the fund much nearer to its original value?

Lord Evans of Temple Guiting: My Lords, I am sure that my right honourable friend Tessa Jowell will take note of my noble friend's last point. Obviously it would be difficult for me to stand here and agree to a doubling of that sum.
	Although things are quite tight, the income that the national museums are now generating for themselves is encouraging. For example, for every pound the Tate gets in grant in aid, it now generates 67p. There has been a 73 per cent increase in total self-generated income from 1997 to 2005.

Baroness Sharp of Guildford: My Lords, is the Minister aware that while we can congratulate museums and galleries on the increase in the numbers visiting them, future generations will not have the benefit of those collections unless more money is put into the care of collections? Will he assure us that sufficient money will be allocated during the Comprehensive Sending Review for the proper care of collections?

Lord Evans of Temple Guiting: My Lords, I cannot give that undertaking. I have spent a great deal of my life in the arts world, and whatever money goes into, it is never enough. However, we recognise that we have to watch this area very carefully, and I am sure that the Government and the Wolfson Foundation, which has been very generous over the years, will continue to ensure that the fabric of our museums does not decline.

Post Offices

Lord Naseby: asked Her Majesty's Government:
	Whether they have undertaken any cost-benefit analysis of the role of the sub post office in today's society.

Lord Truscott: My Lords, Her Majesty's Government's proposals to sustain a nationwide network of post offices, announced on 14 December 2006, draw on a wealth of advice and research from organisations such as Postcomm, Postwatch and the National Federation of SubPostmasters. In developing these proposals, we are satisfied that the case in support of the social role of post offices has been made.

Lord Naseby: My Lords, is the Minister aware that when I went into my sub post office in Potton, Bedfordshire, this morning, the couple who run it so well asked why they were not allowed to do international money transfers, why they could validate a passport but not a driving licence, why they could not have the link facility for the whole Royal Bank of Scotland Group, why TV licences had been taken away from them and why in today's world pensioners could not get their pension in cash? Would it not help in running a viable sub post office network if some of those restrictions were removed so that they could compete on level terms with the banking fraternity?

Lord Truscott: My Lords, Post Office Ltd maintains trading restrictions in sub postmaster contracts because it believes it is essential for the survival of the network. Restrictions cover certain key products and services that generate income for the network. The company needs to preserve the ability to negotiate new business on behalf of the full network. Allowing potential suppliers to cherry-pick branches in which to sell their products would make it impossible for Post Office Ltd to negotiate agreements for all branches. The noble Lord mentioned TV licences. The BBC took that decision on cost grounds. The Post Office has to ensure that it remains competitive at all times.

Lord Razzall: My Lords, does the Minister accept that those can only be crocodile tears for the Post Office from a Conservative Party which, during its last Government, presided over 3,500 post office closures and more than £2 billion being siphoned off from the Post Office network for the benefit of the Treasury, which could have been invested in the furtherance of the network? Does he also accept that his Government do not have entirely clean hands, as 4,000 post office branches have closed since Labour came to power in 1997, during which period we have seen the phasing out of facilities that post offices provided, as the noble Lord, Lord Naseby, described? Will the Minister confirm that, at the end of the consultation period in March 2007, this Government will maintain the sub post office network at a level that will preserve the social role of post offices in our towns and villages?

Lord Truscott: My Lords, I am grateful to the noble Lord. I certainly agree with him on the former point but not on the latter. The Government have invested something like £2 billion in the Post Office network since 1999 and we are committed to investing another £1.7 billion up to 2011. Of the 14,300 odd branches, only about 4,000 are commercially viable. The 800 smallest post offices receive, on average, 16 customers a week, with a loss of £17 per visit. That position is not sustainable. Current losses run at about £4 million a week, so we need to make changes, but we also need to ensure that we retain the social Post Office network. The Government are committed to doing that.

Baroness Wilcox: My Lords, if the Post Office does not win the contract for the Post Office card account, it is possible that pensioners will have to pick up their money from PayPoint outlets, which is inconvenient and possibly dangerous. That would lead to a further loss of business for the Post Office network. What assessment have the Government made of further post office closures if that happens?

Lord Truscott: My Lords, on POCA, we are committed to a replacement product available on the same basis as now; it will be introduced from 2010. The Government feel that the Post Office is well placed to bid for the contract, but as the noble Baroness knows full well, we have to abide by EU regulations which require that that goes out to tender.

The Lord Bishop of Ripon and Leeds: My Lords, is the Minister aware of the developing use of community buildings, including churches, in providing Post Office services, as in Sheepy Magna in Leicestershire? What way does he see of encouraging such developments in the interests of community cohesion?

Lord Truscott: My Lords, I am grateful to the right reverend Prelate for his intervention. The Government will be setting up at least 500 outreach outlets, which will serve small communities along the lines that he suggests, including mobile post offices and services in village halls, community centres and pubs. I think that we can build on that.

Lord Foulkes of Cumnock: My Lords, has my noble friend noticed that noble Lords opposite have been arguing for more money for waterways—

Noble Lords: Reading.

Lord Foulkes of Cumnock: My Lords, I am very good at reading as well. They have been arguing for more money for waterways, for museums and galleries and for post offices. At the same time, Mr David Cameron and Mr George Osborne seek to cut the budget of the Government by £21 billion. Does my noble friend not discern some contradiction in those two positions?

Lord Truscott: My Lords, I agree with my noble friend. I think I will leave it at that.

Lord Roberts of Llandudno: My Lords, the Government propose to introduce 69 personal interview offices for first-time applicants for passports. Have they thought it through to see how that will again undermine our post offices?

Lord Truscott: My Lords, the way people buy goods and services is changing. A lot of people, for example, now buy their driving licence online; a lot of people pay by direct debit; the vast majority of pensioners now receive their pensions directly into bank accounts; and people increasingly use the internet. We have to recognise that the Post Office needs to change with the times as well.

Railways: First Great Western

Lord Berkeley: asked Her Majesty's Government:
	Whether the conduct of the new Great Western Trains franchise has met the Government's performance criteria.

Lord Davies of Oldham: My Lords, First Great Western has met the Government's performance criteria to date. Improving rail performance is nevertheless a key objective for the Government and joint action plans are in place between Network Rail and First Great Western to address performance issues. These are monitored monthly.

Lord Berkeley: My Lords, I am grateful to my noble friend. Does First Great Western's meeting the performance criteria include the fact that 60 trains a day have been cancelled since December; that there is so much congestion in Bristol and the Thames Valley that people cannot even get on the trains; that some fares are up by 11 per cent and there have been 9,000 complaints; and that, meanwhile, First Great Western has sent 12 trains back to the depot to do nothing? Do the Government think that that is satisfactory? The Railways Act 2005 gave the Secretary of State the power to specify trains, numbers of coaches, stopping patterns and so on. Does the Minister believe that the Secretary of State actually has the time to do that, or even the expertise?

Lord Davies of Oldham: My Lords, Great Western meets the minimum contractual requirements but performance has long been poor compared with long-distance operations elsewhere on the network. That is why, as I indicated in my initial Answer, specific measures are in place. Great Western needs to invest in improving its long-distance trains and 19 new motor units are being put into 19 trains to replace what are in fact fairly aged performers. We therefore expect performance to move up. It certainly is not satisfactory at present.

The Earl of Mar and Kellie: My Lords, in Scotland the First Group is performing quite well on the ScotRail franchise as specified by the Liberal Democrat Minister for Transport. However, the department's over-specification on the Great Western franchise is clearly leading to cancellations and overcrowding. Is the Minister satisfied that First Group is a competent organisation to be bidding for the east coast franchise, where very high standards are expected and have been for several years?

Lord Davies of Oldham: My Lords, each franchise bid is considered on its merits and First Group's bid for the very important east coast main line franchise will be considered in due course. As the noble Earl will recognise, there have been weaknesses in train performance in the west of England. The rail authorities are appropriately making demands on the operator to ensure that the necessary investment is in place to improve performance.

Lord Marsh: My Lords, is it not a bit absurd for privatisation to be implemented and then for Governments to criticise and show surprise when the private sector's decisions are not the same as the Government's? Is it not time that we woke up to the fact that railway privatisation is verging on the edge of a disaster? It is about time that we at least re-looked at it.

Lord Davies of Oldham: My Lords, in the past decade there has been unparalleled investment in rail services, leading each year to a greater number of passenger miles than we have known before. Although punctuality is still not at levels that we want to see, punctuality even in the south-west was at 85 per cent, which is the norm across the network. We want to see improvement, and investment will produce improvement in more reliable rolling stock. The noble Lord should not underestimate the gains made in the past 10 years through government and private investment in rail.

Lord Crickhowell: My Lords, is it not more relevant that First Great Western so often fails to meet customers' performance criteria? Far from the service improving, trains are more and more frequently very late or are cancelled.

Lord Davies of Oldham: My Lords, First Great Western is aware that it could have more constructively handled recent complaints by the travelling public about a weakness in service, particularly in the Bristol area. We want to see it do so in future. But, generally, investment is in place to guarantee that the rolling stock is fit for purpose and improve the service in coming years.

Baroness Warnock: My Lords, is the Minister aware—I am afraid that he may not be—that since the beginning of the year there has been almost a tripling of the cost of the journey on the First Great Western line which I frequently use because the trains have been rescheduled as long-distance rather than short-distance trains? On the past three occasions that I have travelled from Paddington to Great Bedwyn I have had to stand from Paddington to beyond Newbury, which is almost in Wiltshire. Does he agree that the claim that the rolling stock has improved and is fit for purpose is a bit of an exaggeration?

Lord Davies of Oldham: My Lords, it is certainly unacceptable for passengers regularly to stand during long journeys. The ambition is that passengers should not stand for journeys of more than 20 minutes. The noble Baroness has identified a weakness in the First Great Western service. As I indicated, some but not all of this is attributable to unreliable rolling stock, and that is being put right.

Lord Hanningfield: My Lords, the Minister did not mention that passengers are holding a day of protest, boycotting trains in the south-west on 22 January. Has he no comment on or support for that?

Lord Davies of Oldham: My Lords, what I hope will result from the passenger protest is a very clear appreciation by First Great Western that improvements are necessary and—as the noble Lord, Lord Crickhowell, indicated—that it will improve its passenger relations. I therefore hope that there will be a step forward on 22 January.

Piped Music and Showing of Television Programmes (Hospitals) Bill [HL]

Lord Beaumont of Whitley: My Lords, I beg to introduce a Bill to provide for the Secretary of State to draw up a plan to prohibit piped music and the showing of television programmes in the public areas of hospitals and to require the wearing of headphones by persons listening to music in public areas of hospitals. I beg to move that this Bill be now read a first time.
	Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.

Statutory Instruments Committee

Lord Brabazon of Tara: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, in accordance with Standing Order 74 and the resolution of the House of 16 December 1997, that, as proposed by the Committee of Selection, the following members be appointed to join with a Committee of the Commons as the Joint Committee on Statutory Instruments:
	E Attlee,
	L Dykes,B Gale,L Gould of Brookwood,L Kimball,C Mar,L Walpole.—(The Chairman of Committees.)
	On Question, Motion agreed to, and a message was sent to the Commons.

Concessionary Bus Travel Bill [HL]

Lord Davies of Oldham: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, that the amendments for the Report stage be marshalled and considered in the following order:
	Clauses 1 to 5,
	Schedule 1,Clauses 6 to 13,Schedules 2 and 3,Clauses 14 to 16.—(Lord Davies of Oldham.)

On Question, Motion agreed to.

Mental Health Bill [HL]

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]

Lord Carlile of Berriew: moved Amendment No. 8:
	After Clause 4 , insert the following new Clause—
	"Renewal of detention
	(1) Section 20 (duration of authority) of the 1983 Act is amended as follows.
	(2) In subsection (3)—
	(a) for paragraph (a), substitute— "(a) if he is a medical practitioner, to examine the patient and to arrange for another registered medical practitioner to examine the patient, or (b) if he is not a medical practitioner to arrange for two registered medical practitioners to examine the patient"; (b) in paragraph (b)— (i) for "him" substitute "them", (ii) for "if it appears to him that the conditions set out in subsection (4) below are satisfied, to" substitute "if the requirements of subsection (4) are satisfied the responsible clinician shall".
	(3) After subsection (3) insert—
	"(3A) The report to be furnished under subsection (3) shall be founded on the written recommendations in the prescribed form of the two registered medical practitioners including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) are complied with and each such recommendation shall include—
	(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) to (c) of subsection (5), specifying whether other methods of dealing with the patient are available, and (b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and if so why they are not appropriate.""

Lord Carlile of Berriew: My Lords, the purpose of Amendment No. 8 is to ensure that, before a patient's detention is renewed, the renewal receives the same degree of consideration as the original order. The principle behind this is that the renewal of a detention might—and is often certain to—raise considerations as complex as those which underpin the making of the original order.
	The amendment therefore requires that the process involved in the initial section is duplicated. This is achieved by requiring two medical practitioners to examine the patient before renewal can take place. I have already summarised how the renewal of an order on a patient, after six months or a year, raises the same issues as those in the decision to make the first order.
	When a patient is in the first stages of a very acute crisis that gives rise to the original order, the symptoms the patient shows are often very florid. The diagnosis at that stage may make the initial order rather easier to make than a renewal some time later. When one reaches the stage of a potential renewal, it is very likely that the patient will have undergone some treatment and that their symptoms may therefore be less florid. They may appear, in certain ways, to be irrational. Irrationality, however, is not a qualification for falling into the category of mental disorder, as speeches, at least in another place, often illustrate.
	I therefore suggest that to secure the safety of the patient—who may be in a rather more benign condition and may be at risk of misdiagnosis—the same quality of assessment, by appropriately qualified medical practitioners, is required. I do not begin to understand why the Government say that the examination by two medical practitioners is necessary only at the outset of the compulsory process. From talking to the many experts in this House on the diagnosis of mental disorder and various psychiatric conditions, and to many others involved in the world of psychiatry, I know that diagnosis does not necessarily become easier as the patient's disease progresses.
	The amendment also includes a requirement for examination and certification by two medical practitioners if the renewal is supervised by a health professional other than a medical practitioner. In this context, the 2004 Bill, which the Joint Committee considered, was an improvement on the Mental Health Act 1983, in that a renewal was overseen by the mental health review tribunal, as it was called in that Bill, with access to a panel of experts. Plainly, therefore, when the Government produced the draft Bill that went before the committee in 2004, Ministers were of the view that verification by a panel of experts for renewals was necessary. With the change from the 2004 draft Bill to the current Bill, that safeguard has been lost. This amendment would provide an alternative safeguard, with a similar requirement for more than one medical opinion. I beg to move.

Earl Howe: I support all that the noble Lord, Lord Carlile, has said, and I hope that the Minister will acknowledge that there is a real issue here that deserves a positive reaction from the Government. We have to listen to what the professionals are telling us. They are saying that renewing a detention order should not be an easy process, and that the 1983 Act facilitates the continuation of compulsory detention in too easy and straightforward a way. As the noble Lord said, the circumstances in which a decision to detain a patient is made initially are often much more clear-cut than those that obtain later, when the patient has received treatment and has been stabilised. At that later stage all sorts of question marks can arise over how ill a patient still is and what the nature of his illness is. Diagnoses frequently change over time, and they do not necessarily remain set in stone. All this argues for as much clinical rigour to be applied to the renewal decision after six months or a year as to the decision to detain the patient in the first place. If one accepts that idea, the proposals in the amendment are surely compelling.
	We are at a time when increasingly the evidence base for medical decisions has assumed paramount importance, and rightly so. Any diagnosis of a mental disorder needs to be based on objective clinical evidence. The weight and validity of such evidence can only be evaluated by those who have the necessary medical qualifications to do so. I was 100 per cent with the noble Lord when he said that it should not be enough for someone who is not medically qualified and who may have played no part in the original decision to detain a patient to assume responsibility for renewing the detention order; yet that is what we shall get if the Bill goes through in its current form. The noble Lord was right to remind us that in the 2004 draft Bill renewals would have been overseen by a tribunal with access to a panel of experts, and in this Bill we no longer have that safeguard.
	I am worried by the fact that we live in a risk-averse culture. If we leave decisions about renewal of detention to one individual—and not necessarily a medically qualified individual at that—we may well see defensive practice rearing its head even more than we do now. That prospect is not appealing. I hope the Minister will listen carefully to these arguments and above all will listen to the united voice of the profession, which is saying that the Government have quite simply got this one wrong.

Baroness Meacher: The Government have rightly upheld the 1983 Act requirement that a detention order, whether made under Section 2 or 3, must be supported by two medical recommendations. On the other hand, as the noble Lord, Lord Carlile, has indicated, the assumption of the renewal clause seems to be that renewal is just an easier matter altogether and does not require a doctor, let alone two doctors, to make that decision. In fact, it is often harder to make those decisions at the time of renewal. Even when the presence of mental disorder may remain evident, the difficult issues are those of nature or degree. The judgment needs considerable training and experience in managing psychosis if one is to get those rather sensitive issues right.
	It is important to note on a different side of this that the UK's Council of Disabled People is opposed to these clauses, which extend the range of professionals who can detain patients. It asserts that,
	"individuals will not have the same positive therapeutic relationship with their counsellor, psychologist, psychotherapist or community mental health nurse if they have detainment powers. It is less likely that individuals will seek help if the healthcare professional has these powers".
	That is the service user view. The professional view on the one hand and the service user view on the other seem to line up behind one another.
	I understand that the assumption behind the proposed change is that a skilled psychologist may be able to decide upon the renewal of detention in the case of patients with personality disorders whose treatment may be predominantly psychotherapeutic or educational. I agree that in cases where there is no mental illness a consultant clinical psychologist could act as the responsible clinician. However, if the Government wish to leave the legislation open to this possibility—in my humble view, reasonable—then the Bill will need to be amended to clarify the extent of qualification required for the job. My key point is that the legislation must also be clear that for the renewal of detention of a patient with a mental illness—we are talking about a psychosis here—two medical recommendations should be required, just as the Bill requires for the original detention. It is a matter of being clear about psychotic illness on the one hand and personality disorder on the other.
	We have a personality disorder unit in the East London and The City Mental Health NHS Trust, where I am chairman. My understanding is that the treatment regime for our patients in the unit can be complex, including a mixture of medication and a range of therapies. In such cases two medical recommendations would be essential. Of course, if the therapeutic benefit test amendment is lost and people can in future be detained for behaviour, control and education alone, then we could find that a nurse who is providing some basic skills classes could approve the renewal of detention in order to continue her classes. I am sure that this is not the intention of the Government. I raise this slightly extreme example only because I think that we need to be conscious of where this Mental Health Bill is leading our mental health services. Is this really the direction of travel that we want?
	The Bill as it stands extends to other professionals the role of responsible clinician for a wide range of decisions. The amendment applies simply to one. In particular, I would be very concerned about a clinician who was not a psychiatrist initiating community treatment orders and recalling persons subject to community treatment orders to hospital. We will no doubt return to that issue when we debate Clause 25. In conclusion, I urge the Committee and the Minister to support the amendment, to ensure that only clinicians trained and experienced to assess psychiatric patients, and who have the understanding of treatments, their side effects and potential benefits, have the authority to renew the detention of mentally ill patients.

Baroness Murphy: There is one occasion in the 1983 Act, in Section 141, where you can have the renewal of detention at the say-so only of two specially chosen doctors, appointed by the president of the Royal College of Psychiatrists. That is the renewal of detention of Members of Parliament. I find it very interesting that when they were considering this issue in 1982, Members of Parliament singled themselves out to have their renewal of detention by specially appointed doctors chosen by the president of the Royal College of Psychiatrists. Would that we were all so lucky.
	In supporting this amendment, I want you to feel for a moment what a patient feels like after six months of detention. Remember that when you were admitted, it would have been a very frightening and difficult to remember experience. You would probably remember the GP, the police and the journey, but everything else would be a bit hazy. Now you have had six months of treatment, probably still have symptoms—not as terrifying as they were six months ago—but are feeling a bit better clinically. However, you may still feel very resentful about being detained. The symptoms are abating, but you are now more concerned about getting out, having somewhere to go and resuming life, getting back to where you started. You are frustrated that, just as you begin to feel a bit more normal, you are under threat of continuing detention. The clinical team has a much greater dilemma than when first faced with the overtly ill person. It is not an easy decision whether to continue with the compulsory treatment in detention. It is a matter of weighing up all those clinical symptoms and assessing compliance and likely co-operation with rehabilitation care plans. Many of us feel that that is when a second opinion is valuable. Determining whether a patient can be discharged requires careful handling of risks and benefits to others.
	The 2004 Bill was an improvement on the 1983 Act, as has already been noted, because the renewal was overseen by the tribunal, with access to a panel of experts. That safeguard has, sadly, been lost. The amendment provides an alternative, with a similar requirement for more than one medical opinion. The noble Baroness, Lady Meacher, pointed out that it is possible for a patient to be detained for up to a year or so on the say-so of a responsible clinician who is not a doctor—one nurse, one psychologist or one occupational therapist.
	I ask the Minister and noble Lords whether they would be happy at the prospect of themselves personally, or their family members, being detained for up to a year on the decision of someone who is not a consultant psychiatrist without the need for that person to consult anyone at all who is qualified. I am not happy with such a prospect. I know that clinical practice has changed enormously and that to make use of clinical teamwork and clinical time it is good that members of the team should be consulted—and approved mental health clinicians should certainly make a big contribution in the decision—but I am trying to imagine a clinical situation outside of this in, for example, treatment of patients with physical disorders, where we would leave such major decisions to someone who was not a consultant in his or her field.
	Although I would like team members to be consulted, I would like the responsible clinician to be a psychiatrist, and a second doctor to be involved, to give equivalent rights to someone who is being detained.

The Countess of Mar: I heartily endorse what previous speakers have said. I am sorry that I have intervened so late in the debates on this Bill, but circumstances have precluded me from taking part previously.
	I was recently asked to intervene in the case of a lady who had been labelled by her local social services department as having Munchausen syndrome by proxy. She expressed severe concern about the safety and welfare of her children against threats that were later proven to be correct. But the social services department decided that she was paranoid and a danger to herself and other people. She was sectioned under Section 2 of the Mental Health Act. When that diagnosis was challenged, the psychiatrist, a locum at the Central Middlesex Hospital, changed the diagnosis to schizophrenia. I had known the lady for some time and—although I am not medically qualified, but have contact with psychiatrists through my other activities—was fortunate enough to find a psychiatrist who was prepared to examine this lady on a pro bono basis. He travelled all the way up from the west of England and found that there was nothing wrong with her, apart from the fact that she could perhaps be described as an overanxious mother. This lady was threatened with being forcibly medicated, the strong-arm boys were actually brought in and a court order had to be obtained to prevent that forcible medication. The situation was so Kafkaesque that one could not believe that it was happening in this day and age. But it did happen and, thank goodness, when the case came before the mental health tribunal, the woman was discharged with no labels attached to her name.
	That was fortunate but she might not have had that benefit if someone who cared about her had not intervened. It is very important that suitably qualified people sit on those tribunals.

Baroness Finlay of Llandaff: This issue was put to me very simply by a psychiatrist when we were discussing some of the ongoing problems with patients. When somebody first presents and the acute crisis occurs, and several healthcare professionals have to be involved, it is pretty obvious that that person is very seriously disturbed. People with psychological and psychiatric illness, though, over time also get other illnesses. It may be that their psychiatric condition has ameliorated but other physical illnesses emerge that may aggravate their symptoms and be mistaken for ongoing disturbance. This population are particularly at risk of some diseases. They tend to be heavy smokers, who are at risk of developing lung cancers, which develop silently. Lung cancers can metastasise to the frontal lobes of the brain and present with disturbed behaviour.
	If somebody is retained under compulsion because of a disturbance of his mind, it is absolutely crucial that after six months the diagnostic processes are gone through again. Medical training and the training of the psychiatrist incorporate complex diagnostic training. The other disciplines that will be able to be involved have not received that complex physical diagnostic training. Indeed, nurses may have trained purely in mental health—that is not to denigrate their skills, it is simply that they have come up through another path. It is terribly important that we remember that the subtlety of diagnosis on review may be much more difficult than the initial barn-door presentation.

Baroness Royall of Blaisdon: Amendment No. 8 concerns patients whose period of compulsory treatment under the Act has come up for renewal. A renewal requires a report to be submitted. The amendment first requires that the renewal report to the hospital managers includes a recommendation from two doctors that the patient continues to meet the conditions for compulsion.
	Under existing legislation the renewal report is based on the recommendation of one professional, the patient's responsible medical officer, who is the doctor in charge of the patient's treatment. We believe that to require the recommendation of two doctors is unnecessary. Of course we recognise that renewal is not an easy process. Good practice requires an ongoing assessment of the needs of a patient and the input of a multi-disciplinary team together with the patient. That is reflected in the code of practice, and will be included in future editions. So the report submitted will be the result of a continued dialogue between several professionals and the patient.
	We must remember that a renewal report also triggers the hospital managers' consideration of whether a patient should be discharged. Hospital managers' hearings can take account of evidence from all the professionals directly involved in the patient's care; for example, his social worker and his named nurse. Relatives and carers are also invited to contribute and the patient can have representation. It is therefore not the case, nor shall it be, that a patient's continuing compulsion is based on the views of one professional.
	The amendment would also allow doctors to provide the recommendations in the renewal report. That undermines the policy that professionals should not be prevented from carrying out functions that they are competent to perform. To do so would not be in the best interests of patients and would not contribute to the modernised, flexible workforce that currently exists and with which we are trying to bring this legislation in line.
	All responsible clinicians will be highly skilled professionals and will provide the necessary rigour. Unlike responsible medical officers, responsible clinicians will be trained and approved for that specific role. The minimum approval criteria, including the competencies required, will be set out in directions. A draft of these has been made available to your Lordships for information. One of the competencies is the ability to identify the presence or absence of mental disorder and the severity of the disorder.
	From this pool of skilled, trained and approved professionals, a patient's responsible clinician will be selected because they have the skills and expertise that best meet the particular patient's treatment needs. In many cases this will be a doctor, because a doctor's skills will best meet the patient's needs, but there will be cases where treatments which only a doctor can provide are not the most significant part of a patient's care package. For example, in the case of a patient who is receiving mostly psychological intervention, the patient may be best served by a responsible clinician who is a psychologist.
	A patient's responsible clinician will have overall responsibility for their case. Not only will they be the clinician with the skills most appropriate to the patient's needs, but they will be the professional with the most comprehensive knowledge of the patient's current overall condition. It therefore makes sense for this person to provide the renewal report. It is not appropriate to require a doctor who is not the patient's responsible clinician to draft the renewal report. This is inefficient and not in the best interests of patients.
	The amendment would require the renewal report to include the reasons for recommending that the conditions for compulsion are met, whether there are alternatives to compulsion, and the reasons why these alternatives are inappropriate. As the Committee will be aware, the renewal report, which is a statutory form, already requires the responsible clinician to set out the alternatives to detention and why treatment cannot be provided without compulsion. The code of practice also requires the hospital manager to consider all evidence as to whether the conditions for compulsion under the Act are met. This includes a written report from the responsible clinician covering the patient's care and treatment, his care plan and all risk assessments. The responsible clinician is required, under the Act, to consult one or more other professionals involved in the patient's care before submitting the renewal report. A report of this consultation is also considered as part of the hospital managers' hearing.
	The arrangements in the Bill for considering whether a patient's compulsion under the Act should be renewed are thorough, robust and sufficient to protect patients against continued compulsion, unless absolutely necessary to prevent them coming to harm, or harming others. I therefore urge the noble Lord to withdraw this amendment.

The Earl of Onslow: Did the noble Baroness alter a single word of her brief from what was written down for her before the debate started, or did she just plough on, ignoring absolutely everything that was said behind her? I watched the noble Baroness very carefully from this side of the Committee: there she was, following a detailed brief with her finger. She is not the only person to do so; I have seen it done by our Government. It is a thoroughly unsatisfactory way of answering points raised by very distinguished Members of the Committee.

Baroness Royall of Blaisdon: Indeed, in the House of Lords we have the most distinguished people available in many areas, including the very important area of mental health. I listened with care to exactly what noble Lords were saying and varied my brief. This Government have considered these issues carefully and I reflected what they believe. That does not mean that I was not listening with the utmost care to what noble Lords were saying, and taking what was said into consideration. We will continue to do so.

Baroness Masham of Ilton: If the patient does not agree with his or her treatment, do they have a right of appeal or the right to a second opinion from a qualified doctor? That is to say, do they have those rights now?

Baroness Royall of Blaisdon: I regret that I do not have that information. I will write to the noble Baroness and place a copy of my letter in the Library.

The Countess of Mar: The noble Baroness described the situation for a patient under ideal circumstances. In my experience—and I have had quite a lot to do with mental hospitals during my lifetime—this is the poor relation of the hospital service. Very rarely do you get a continuation of doctors, let alone nurses or supporting staff, on wards. What would happen in a case like the one I illustrated, where most of the staff could hardly speak English? A few could, but most could not. The consultant, although probably very good, was not an English national. What happens in those situations? It cannot be satisfactory when the full staff are not there, and there is no one to note continuity in the patient's records or behaviour.

Lord Hylton: I speak as a complete layman in these matters, but in view of the strength and quality of the six speeches supporting the amendment, will the Government at least say that they will take this matter away to consider it further before the next stage?

Baroness Murphy: Before the Minister responds further, it may be helpful through the Committee to inform the noble Baroness, Lady Masham, that there is provision at several junctures during the detention for treatment, at which a patient will have a second opinion through a formal system involving appointed doctors under Clause 58. That, I think, responds to her concerns.

Baroness Royall of Blaisdon: In response to the specific case raised by the noble Countess, and her fears, which I entirely understand, that a patient will not be looked after and listened to by one person throughout their care, that is one reason behind what the Government are doing: to ensure that the responsible clinician can take those decisions. That person will have been responsible for the patient throughout, will best know the person and will have their confidence.

The Countess of Mar: The point that I was making was that in fact they will not be responsible for the person throughout because of the state of staffing in the health service.

Baroness Royall of Blaisdon: I understand that that is the point that the noble Countess was making, but we are talking about best practice. We must ensure that best practice is adhered to; it cannot be written down in statute, but we must encourage it.

Lord Carlile of Berriew: I am grateful to those who have taken part in what has become an interesting and lively debate. I cannot aspire to the dash, style and pizzazz of the noble Earl, Lord Onslow, but, if he will allow me to say so, I may be slightly more gallant than him this afternoon in thanking the Minister for speaking in such detail in answer to the amendment. I listened to her every word with care and I must say that my conclusion is that the Government are approaching the issue with eye-watering complacency, which causes me deep regret. The noble Baroness has listened to a number of speakers in this debate, of whom the majority—I do not include myself in this—are real experts in the field about which we are talking. They have had their hands—literally, their healing hands—on the patients of whom we are speaking.
	When a Government change their mind, one always looks for reasons. The Government have changed their mind on this issue. It is absolutely clear from the Government's attitude to the 2004 draft Bill that they believed at that time that additional safeguards were needed. That is presumably why they included those safeguards in the draft Bill and it is for exactly those reasons that the committee, which I chaired, shared their concern that those additional safeguards were needed. The Government have now withdrawn from those safeguards to a position in which they are saying that the 1983 Act provides perfectly well for renewal. No cogent reasons have been given, other than—if it be a reason—that the 1983 Act works reasonably well so there is no reason to change it.
	The noble Baroness spoke about competencies. I urge the Committee to beware of the word "competencies", which arises in all forms of qualification approval in the public sector these days, not least in the legal profession and in the appointment of judges. It usually involves self-assessment or, at best, rudimentary assessment by others. Competencies are no substitute for recognised professional expertise; the word means something quite different. I feel great disappointment at what is turning into the dumbing-down of the skills required for renewal, rather than the approval expressed implicitly in the draft 2004 Bill for increasing the requirements.
	The Joint Committee on Human Rights was troubled about this part of the law and asked the Government to explain why they thought that the current situation under the 1983 Act was compatible with the Human Rights Act and the convention. The Bill as a whole has been certified as compliant with the convention, but it would be of great assistance if the Minister could respond on this point—I apologise for not raising it earlier. We can then be clear on whether the Government are right.
	It would not be appropriate to divide the Committee on this matter today, but it is currently my intention—and possibly that of others—to return to the issue. With that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 5 agreed to.

Baroness Murphy: moved Amendment No. 9:
	After Clause 5 , insert the following new Clause—
	"Single gateway for treatment
	Section 3 of the 1983 Act (admission for treatment) is amended as follows—
	(a) in subsection (1) after the words "to a hospital"; and (b) in subsection (2) after "a patient", insert "who has been admitted to hospital for assessment under section 2"."

Baroness Murphy: There were some good things in the 2004 Bill which have sadly been omitted from this Bill. One was to set up a single gateway into compulsory powers under which every patient had a 28-day assessment period before being either discharged or placed on a compulsory treatment order by a tribunal. Under the 1983 Act the assessment period under Section 2 may be bypassed, and some patients placed immediately on a treatment order under Section 3, which enables clinicians to bypass an early application to the tribunal. There is a right of access to the tribunal to challenge each order. The purpose of this amendment is to provide a single gateway into the system for the exercise of compulsory powers, similar to that in the 2004 Mental Health Bill, to ensure that any individual who is potentially to be detained and treated against his or her will in hospital always undergoes a period of assessment before that occurs. This approach was also recommended by Ginevra Richardson's expert committee, and adopted for the 2004 Bill.
	The merit in that is that circumstances change clinically, the nature of the disorder may change, and it is always a mistake to assume that because somebody has had it before, this is another episode of the same. I have seen many such mistakes made when people are readmitted, harking back to what was said by the noble Baroness, Lady Finlay of Llandaff, in her response to the previous amendment. Something seriously amiss has happened in the patient's life to justify intervention under the Act. The factors that precipitate the detention and their impact on the patient need to be assessed. The single gateway provides for an early tribunal when admitted, and a second bite at the appeal cherry if they are then subsequently detained.
	This has been supported for a number of years by Jones's Mental Health Act Manual, the established authority on the Mental Health Act for practitioners. It was also encouraged in the first code of practice for the 1983 Act, which I made a contribution to writing. Chapter five of the 1999 revised code of practice gives a rather longer discussion of when Section 2 should be used and when Section 3 could be, and suggests that the frequently admitted patient might come in on a Section 3. Since then, the Mental Health Act Commission has noted an increase in the use of Section 3, but it does rather miss the clinical point about the purpose of assessment and the greater opportunity for an early tribunal.
	We cannot get the full impact of a single gateway into the 1983 Act because the role of the tribunal in authorising compulsory treatment has been omitted, but the amendment could get us near enough to doing so. I stress that clinicians consider that what is proposed here is normal best practice, but not all psychiatrists have followed it, and I think they probably should.
	It becomes particularly important in the case of any form of supervised community treatment, because in theory someone could be admitted for treatment directly, remain in hospital for one day and then be placed on supervised community treatment. The Government's response will rightly be that that would be rather bad practice and that we would expect people to behave better. Nevertheless, these very serious decisions, if we are to take them, require considerable in-patient assessment, and if we have a single gateway into care, a patient will be guaranteed a proper and thorough assessment each time. I beg to move.

Earl Howe: The noble Baroness speaks with tremendous authority on this issue, and I can only agree with all that she said. Simply from a practical perspective, we need to focus on how valuable it is for an assessment to be carried out in all cases before there is any question of compulsory powers being exercised. Having listened to psychiatrists talking about this issue, I am convinced that this concept of a single gateway is right. It is sometimes very difficult for a doctor, when confronted by a patient in acute mental distress, to make an accurate diagnosis about that person's needs in a very limited time. Snap judgments can be wrong. That difficulty can occur even when he knows the patient already. To admit the patient for assessment buys him the necessary time and ensures that the essential preconditions for compulsory admission to hospital are present. Chief among those conditions is that the patient has a mental disorder as opposed to suffering from anything else, such as temporary intoxication or, as the noble Baroness, Lady Finlay, said, a brain tumour, and that compulsory treatment is necessary to avoid significant risk to the patient or to others.
	The noble Baroness was right: we do need to remind ourselves that, for an individual even to put himself in the running for compulsory detention, something very major must have happened that brings him to a state of mental crisis. Even if the doctor has dealt with the patient before, he cannot necessarily prejudge how such a crisis should best be handled. Whatever is the matter with the patient now may be different from whatever was the matter before, and all this argues strongly for this amendment.
	The noble Baroness was right again to remind us that the 2004 Bill provided for an automatic assessment period before a care plan is drawn up. I hope that the Minister will not tell us, as she did in response to the last amendment, that this amendment is strictly unnecessary because it accords with best practice. If I were to be cruel about the Minister's last reply, I would say that she was preaching to us an exercise in cost-cutting in the National Health Service. I hope I do not misjudge her—I am sure that she is not of that frame of mind—but that could be what lies behind the Government's answers.
	I hope that the Government will look positively at trying to replicate in this Bill the idea from the 2004 Bill, because under that Bill the patient would either have been discharged or have had his case considered by a tribunal. The amendment in effect proposes a right for all patients to apply to a tribunal. That is in the spirit of what the Government accepted before as being appropriate, and I am sure that it is right.

Baroness Neuberger: I support the noble Baroness, Lady Murphy, and the noble Earl, Lord Howe. As many noble Lords know, I spent several years chairing an NHS trust which had a major mental health component. I agree with the noble Earl that we should keep away from saying that best practice means that X or Y will be done. The problem is that in a very stressful ward with staff and bed shortages best practice does not always apply. Any of us who have had much experience of the system would say that at best it applies, at worst it does not apply, and that a lot of the time best practice is somewhere in the middle and is applied some of the time. For that reason, it is important that we go back to the principle accepted in the 2004 Bill, that there is a period of up to an up to 28 days that gives people a breathing space. The noble Baroness, Lady Murphy, was right: in particular, if we move towards compulsory treatment in the community, it is key that people have that breathing space.
	I also want to comment on the point made by clinicians who have argued that patients who are already well known to the service should not require this period of up to 28 days because they are revolving-door type patients, have been admitted before on a voluntary basis or, having lacked capacity, have not objected to being there. Those arguments are profoundly wrong. If compulsory powers are to be contemplated, as the noble Baroness and noble Earl have said, the situation has in some quite profound way changed. The patient may now object to being in hospital or, significantly, may object to the treatment, which can be very unpleasant, or may have got worse. For those reasons, I support this important amendment.

Baroness Meacher: I shall be brief. I do not want to repeat what other noble Lords have said, but I want to register my support for this amendment. Under the current provisions of the 1983 Act, most patients who come under the compulsory regime defined in the legislation are admitted under a Section 2 28-day assessment order. As my noble friend Lady Murphy, mentioned, an increasing number of patients are placed on a Section 3 treatment order for a maximum of six months. One reason for this is that only Section 3 patients have the right to aftercare under Section 117. Psychiatrists have told me that that is why Section 3 is popular. The amendment Bill would perpetuate that state of affairs.
	Having been involved in assessments under the Mental Health Act 1983, albeit many years ago, I clearly remember the horror of patients who were placed under a Section 3 treatment order on admission to hospital without the benefit of the initial 28-day assessment order. The horrible trauma of the police, the ambulance, the professionals and so on must feel completely different to being admitted to hospital. When telling a patient "This is a six-month order", it does not matter how many times you say, "But you may be discharged long before that—maybe after three or four weeks". They cannot hear that, partly because of their state of mind at that time. All that they really take on board is "I am being banged up for six months", which is not a small matter for patients. It is horrendous. This sounds like a minor amendment, but for service users/patients it is not.
	Noble Lords have mentioned the clinical perspective where, however many times a patient may have been in hospital, there is always a need to look at the circumstances that caused the particular crisis, the symptoms at the time and so on. It may be that after a brief period of assessment within the 28-day order the patient could be discharged and the rather onerous six-month detention order may not need to be considered. The mental health services are increasingly well placed to provide therapy and support, although, as the Minister knows well, much needs to be done to extend that. The legislation should surely reflect the current and future aspirations of the mental health service rather than look back to a more hospital-based and detention-focused service. A further advantage of a single gateway is that a 28-day assessment order gives the patient early access to a tribunal. There is no doubt that that can be onerous for clinicians, but having abandoned the much more extensive role played by tribunals in the 2004 draft Bill, it is perhaps not unreasonable to suggest that this particular safeguard would be a reasonable one.
	As has already been mentioned by other noble Lords, the 2004 draft Bill did seek to deal with the issue—I understand that it did so very well—but the major texts and the Royal College of Psychiatrists all support the single gateway as a valuable safeguard. Further, on the point made about Section 117 aftercare, this could be extended to Section 2 patients and, indeed, should be. That is fairly basic. So I hope the Government will consider the importance to service users of an initial assessment order and agree to this amendment.

Baroness Royall of Blaisdon: As we have heard, Amendment No. 9 would require all civil patients to be detained under Section 2 when first admitted to hospital. Noble Lords have spoken with great expertise and authority on this, and I understand that this is not a minor amendment. However, I should say to the noble Earl, Lord Howe, that this has nothing to do with cost-cutting. What we are talking about in the Bill is the need to ensure that patients receive the best treatment available and that we make the best use of the resources available.
	Of course, no patient should ever be detained without the need for detention being assessed first. Similarly, no patient should be treated without an assessment of what treatment they need. However, it does not follow that all patients who need to be detained under the Act need initially to be detained under Section 2. In fact, only around a quarter of those detained under Section 3 have been detained under Section 2 first. Many clinicians believe that Section 3 has a valid purpose as a primary form of detention in its own right. Patients who are known to mental health services and are presenting with the same symptoms as in previous episodes should be detained under the appropriate section. I hear what the noble Baroness says, but if it is known what is wrong with the patient and that "appropriate treatment is available", Section 3 would be the most appropriate section. The simple fact is that they do not need to be detained for assessment, and arguably the person making the application and the doctors supporting it would be forced to claim something they did not truly believe. However, I recognise and accept the point that people may change between assessments.
	We could try to tackle this by making the criteria for Sections 2 and 3 the same, but that would not be right either, because there are people who need to be detained for assessment precisely because it is not clear whether they need to be detained for treatment. It must be remembered that many patients have an ongoing relationship with mental health services, and people see the changes taking place. They stay in contact with services and may admit themselves as informal patients if they feel their mental state is deteriorating. These patients will be assessed and, where necessary, treated in hospital as informal patients. But if something changes and they then require detention under the Act, it may not be necessary for them to be detained for a further assessment under Section 2. In 2004-05 some 37 per cent of detentions under Section 3 were of people already in hospital. All patients detained under the Act are continuously assessed to ensure that the initial diagnosis is still correct and that the treatment remains appropriate. Patients admitted for assessment under Section 2 can still be treated even though there is no requirement to establish that appropriate treatment is available before they are detained.
	Section 2 provides the right to reply to the tribunal in the first 14 days of detention, with a tribunal hearing within seven days. If the real issue behind this amendment is a desire to give all patients earlier access to a mental health review tribunal, this we believe is the wrong way to go about it. The Department for Constitutional Affairs is undertaking a series of programmes to improve the efficiency of mental health review tribunals in England and to shorten the length of time between application and tribunal hearing. In addition, the Bill provides for an order-making power that will enable the Secretary of State and the Welsh Ministers to reduce the period before a patient is referred to the tribunal by the hospital managers. Those safeguards will improve access to the tribunal.
	In response to the noble Earl, Lord Howe, all patients detained under Section 3 are entitled to apply to the tribunal and will receive a hearing, on average, within six weeks of applying. The noble Baroness, Lady Murphy, asked whether someone could be placed under SCT after one day in hospital under Section 3. In many ways, she answered the question herself but, of course, someone can be brought under the powers of the Act only if they meet the conditions of Section 3. It is highly unlikely that someone brought into hospital under Section 3 would qualify for that the very next day. We believe, as do many clinicians, that the current admission structure, which enables Sections 2 or 3 to be used, is the most appropriate and I therefore ask the noble Baroness to withdraw this amendment.

Baroness Murphy: I thank the Minister for that careful response. There has been a creeping increase in the use of Section 3 admissions since 1999, which many people—including the Mental Health Alliance and the college—are not convinced is in patients' best long-term interest. I am a little worried that not allowing double access to the tribunal may be a cost-cutting exercise, because of the state of turmoil that the tribunal has been in over the past few years. That may be an added deterrent for the Government from having any further tribunals right now. I am not very sympathetic to that, but nevertheless I will consider the Minister's response further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 6 agreed to.

Baroness Knight of Collingtree: moved Amendment No. 10:
	After Clause 6 , insert the following new Clause—
	"Provision of appropriate food and drink
	(1) Section 58 of the 1983 Act is amended as follows.
	(2) In subsection (1)(b) after "medicine" in the first line insert the words ", but excluding the provision of food and drink,".
	(3) After subsection (1)(b) insert—
	"(c) the provision of adequate food and drink to a patient."
	(4) After subsection (3) insert—
	"(3A) Subject to section 62 below, a patient shall be provided with adequate food and drink at all times unless—
	(a) he has consented not to receive adequate food and drink and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of this decision and has consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of the decision not to receive adequate food and drink or has not consented but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition adequate food and drink should not be given."
	(5) In subsection (4) after "(3)(b)" insert the words "or (3A)(b)"."

Baroness Knight of Collingtree: Until recent years, it was always without question that patients in hospitals would be given food and fluids. That was absolutely automatic. Everyone knows perfectly well that, without food and fluids, every living creature will die. If anyone were to be sick in hospital, they would be fed. There was no doubt about that once, but not any more.
	We all understand that some conditions and illnesses mean that a patient cannot take food in the normal way through the mouth, but for over 100 years there have been other ways to ensure that patients get the sustenance that keeps them alive, and those ways were adopted. Yet a few years ago—I am not sure when, as it made no headlines at the time—the medical profession decided to reclassify the custom of feeding hospital patients. It was henceforward to be called "medical treatment".
	Plainly, that classification is absurd. Is a mother giving a bottle to her baby giving that child medical treatment? Is a husband taking his wife out to dinner to celebrate an anniversary giving her medical treatment? Do we go to the Long Table in the Dining Room to receive medical treatment? Of course we do not, but the change in classification means that people in hospitals may no longer rely on getting their meals as an automatic part of hospital care. As that is now "medical treatment", the doctors or other hospital staff decide whether it will be administered. That is a hugely significant change.
	I do not believe for one moment that patients are routinely left unfed or that a large number suffer in this way. For some years now, however, I have become more and more concerned about evidence that is accruing that it is not uncommon for hospital patients to be starved to death, or to die for lack of fluid. I must remind your Lordships that that is a terribly painful way to die. In the latter stages of starvation, people are too weak to put forward any strong demand for food or drink, and they die.
	I first drew attention to this situation in a debate reported in Hansard on 12 March 2003. I pointed out that the noble and learned Lord, Lord Mustill, was on record as saying, following the reclassification of feeding as medical treatment, that the law is now left in a morally and intellectually misshapen state. I quoted from an ITV programme that showed patients who had been left without food. One old man was lying in bed, weak and unable to speak. He was being given neither food nor water directly or by any other method. He took 18 days to die.
	A lady told me that her husband, who was a stroke victim, had all fluids denied him without a word to him or to her. She demanded to see the doctor in charge and that her husband be given something to drink, or at least to moisten his mouth. He began to get better as soon as her insistent demands were met. I am told that later she was able to take him home and look after him there.
	Evidence, which I hope the Committee will agree is incontrovertible, came from the other place. A friend and colleague, who was an MP for many years and had some heavy jobs and important responsibilities, has a wife who became very ill. He was taking as much time as he could from his duties to sit by her hospital bed. After three days he thought, "That's funny. I can't remember any occasion in the last three days when she has been given any food or liquid". He asked the staff nurse about this, and she said, "Oh, we're not feeding her". He said, "Who on earth agreed to that?". No one had. His wife was not told, nor was he; she was just denied food and liquid. That actually happened; it was the experience of a colleague.
	On the day I spoke of these things in this Chamber I introduced my Patients' Protection Bill, which would have given some protection to people who were being treated like this. The Government blocked that Bill, but the Minister, the noble Lord, Lord Filkin—who, I am sure, wanted to help; he was utterly sincere—told me not to worry, because the aims of my Bill would be achieved in the 2004-05 Mental Health Bill, which at the time was going through this House. Indeed, that Bill contained some words that might well have ended the appalling practice of starving patients. So I sat back and waited to see whether the noble Lord's genuine suggestion to me, that it would all be all right in the future, came about. I am sorry to say that it did not. Things, in fact, have got worse.
	That is why my amendments are on the Marshalled List. We were told—indeed, it was mentioned in the Queen's Speech—that this Bill would amend the earlier Bill. Because I was told the necessary changes would happen in the earlier Bill, and this is an amending Bill, I tabled these amendments to this Bill. I would not normally have sought to insert them in a mental health Bill, but anything done by the noble Lord, Lord Filkin, for whom I have enormous respect, is quite good enough precedent for me.
	I have listened with great care to almost all the debates on this Bill so far. I take this opportunity to register huge admiration for the level of expertise displayed by those who have contributed. This House and our country are greatly indebted to Peers such as the noble Baronesses, Lady Murphy and Lady Finlay, and the noble Lords, Lord Alderdice and Lord Carlile, who between them have years of hands-on experience of what happens with mental patients and with the law. This House provides the country with a wonderful thing: so much expertise from people who know exactly what they are talking about; and advice from the wealth of that experience just when we need it. How fortunate we are to have the benefit of that at no cost. I am only sorry that the Government take no notice, but that does not nullify the contributions made.
	I would not presume to speak in a debate that belongs to those professionals, but I have listened with great care and I have attended several meetings about the Bill. I was on the committee studying the previous one and I understand exactly what this Bill is about. I tabled my amendments not because I judged a mental health Bill to be the right place for them, but because of that precedent.
	I am also told that my amendments are unacceptable because one of them would mean that patients who have anorexia could not be helped because they do not wish to be fed, and that the amendment would harm their treatment. That depends on how one reads it. It says that a patient "has not consented", but it is not a matter of that. In any case, we could argue that one way or another. The two final amendments make quite clear what I am aiming at; they say clearly that the assessment should be changed:
	"In section 64(1) of the Mental Capacity Act 2005 in the definition of 'treatment', after 'procedure' insert 'but does not include provision of adequate food and drink'".
	It is amply clear that I am trying to protect patients by disallowing doctors to refuse them food or liquids.
	There is urgent need for the law to intervene in this matter. My Bill to save patients, as I have said, was blocked. The pious hope that the previous Bill would save them has not come true. I am afraid the situation has worsened. Recently, a hospital doctor, speaking in court under oath, said that two or three patients a week were dying in his hospital alone because they were not being given food or fluids. He said, "I see it happening all the time".
	After the most recent BBC programme on this subject, which was broadcast just before last Christmas, the presenter received a huge number of follow-up calls telling of individual experiences of friends, acquaintances or relatives who had been denied food or fluids. One complaint came up time after time, and I would not be surprised if Members of the Committee had not heard it in their own spheres: a cup of tea, a glass of water or even a plate of food would deliberately be placed where a bed-bound patient could not possibly reach it and after an hour or so a nurse would come bustling in and say, "Oh, not hungry today, Mr Jones?", and without receiving an answer would just remove it. That complaint was made dozens of times. There were nearly 140 complaints recounting experiences such as I describe. Those things worry me greatly.
	Of course I understand how busy nurses are. I appreciate that feeding patients takes time and patience, but we really cannot go on like this. The person in charge must make sure that the staff feed the patient, appeal to relatives to give their help, seek volunteers—I think that many would be ready to help in this way—or allocate money for more paid help in feeding patients.
	In what I believe is still, by and large, regarded as a Christian country, or at any rate a humane one, we must not stand silently by while sick people are killed by deliberate starvation. I know about elderly bed blockers. I read in the paper only last week that they are such a nuisance that they will be sent home and their family doctor will have to do any follow-up. I do not know whether that is true—one does not believe all one reads in the papers—but it was reported. I realise that some people are really rather a nuisance and their room is preferable to their company but I simply cannot accept that they should be deliberately done away with.
	These amendments are framed with care. The matter is not always straightforward, and I tried to indicate that sometimes a patient may not want food for various reasons, or they may actually be harmed by it. These changes would reinstate feeding patients as the recognised norm. It would send the message that patients must be cared for properly. It will no longer be possible for medical staff, without the slightest opportunity for a friend or relative to comment or even to be told, to withhold food and drink from a patient. The seriousness of such an act will be underlined by the involvement of a responsible medical officer, as set down in the amendment, having to certify in writing why it is being done. The patient will have to be consulted. It will not be possible simply to put the notice "nil by mouth" on the patient's record, masquerading under the guise that he or she is being given medical treatment.
	I have had several instances reported to me of patients begging relatives to give them a drink or even just something to moisten their mouth but because those relatives humbly believe that the hospital must know best—and many do—they think there must be some important medical reason for the decision. They think that they are not important enough to argue against what is being done to their dear ones. I recall one woman who told me that when she finally gave in and gave her mother a damp sponge to suck, she was appalled to see that the gums and flesh inside her mother's mouth were stuck together because her mouth was utterly dried up. A post-mortem on one old man showed that his tongue had rolled right back down his throat while he desperately searched for water.
	If we fail to act, if we turn our backs and silently acquiesce with the practice of starving people to death in our hospitals, even if it only happens occasionally, real fear will spread in the minds of anyone over 65 if they learn they must go into hospital, especially if they have no friends or relatives to visit them. They are already scared; they fear MRSA or Clostridium difficile (CD), the new menace in hospitals, but this new fear will be even more terrible. Medical treatment is one thing; providing an essential for life is quite another.
	The Minister may seek to deny that this amendment is appropriate here; if so, will he say where these amendments would be appropriate and whether he is happy to allow the present situation to remain? I beg to move.

Baroness Masham of Ilton: In the rehab unit of a local hospital, which was also a place for very ill or dying patients, which I was visiting, I got to know a man who was very ill. One day I asked him if there was anything that I could bring him from home. His eyes lit up and he said, "Yes, please, a bacon sandwich". The next day I brought him one and the day after he told me that he had enjoyed it very much.
	Why should people be denied the little pleasures of life, especially in the last days of life? Why should they be starved and denied fluid? This did not even happen to Jesus Christ who was crucified on a cross. Denying food and drink to people who want it, as happened recently to a lady in the hospital in Norwich, is simply cruel and uncaring and piles on the concern of elderly patients and their relatives when they have to go into hospital.
	I thank the noble Baroness, Lady Knight of Collingtree, for these humane amendments. We live in a very money-minded society. It is cheaper to kill than to keep alive. Surely, people should feel safe in hospital.

Earl Howe: I rise briefly to support my noble friend who spoke extremely powerfully on an issue which it is not difficult to regard as highly emotive. I congratulate her on having championed it in the way that she has. It is hard to escape the view that there is a very real problem in many of our hospitals of the kind she has described, much as some may not want to confront the fact. We should all rightly be most concerned about it. I was appalled by the incidents which she described. Her amendments make it quite clear that food and drink should never in any circumstances be classified as medical treatment. I agree with that. In fact, up to this point, or rather up to the point when my noble friend raised the matter at Second Reading, I had always taken it that food and drink could not possibly be counted as medical treatment. By food and drink, I mean ordinary food and drink such as normal healthy individuals might consume by mouth. I do not want to put my noble friend to undue trouble but it would be helpful, if she has the information to hand, if she could tell the Committee a little more about the ruling by the GMC that has given rise to the need to make the distinction she is drawing.
	I seek to be helpful to my noble friend but it is my belief that the Mental Capacity Act is not yet fully in force. Will the Minister confirm that? I very much hope that he will acknowledge the seriousness of the issues which my noble friend has raised in her amendments and that something tangible and positive can be done to address them.

Lady Saltoun of Abernethy: The situation which the noble Baroness, Lady Knight, described seems to me to amount to nothing short of manslaughter. Have any legal actions been brought against any hospitals by the relatives of people to whom this has happened? I very much hope that the Government will take this amendment very seriously, and that if they cannot accept it as it stands, they will bring in one of their own; otherwise, I should be very happy to follow the noble Baroness into the Division Lobby. I hope that all Members of the Committee will take this very seriously. After all, let us remember that a great many of your Lordships, including myself, are well over 65. We would not have much hope if we ended up in hospital, would we?

Lord Patten: I spoke during the proceedings on the Mental Capacity Bill when it was before your Lordships' House. I have attended each of the Committee days, waiting for the opportunity to give my strong support to my noble friend Lady Knight. I do so as someone who is in no sense an expert although my record on feeling strongly about these issues is as long as your Lordships' arms combined.
	I will not repeat what my noble friend has said, except that she is absolutely right. There must be a profound respect for life, especially at a time when human life is at its most vulnerable—perhaps involving mental and physical health problems at the same time, which we must take into account. It must surely follow that any patient should receive adequate food and drink, subject to the provisos of my noble friend's amendments. She may, of course, be considering amending her own amendments in due course, in the matter of anorexia and other issues, to make the amendments that she is moving acceptable to the Committee. Perhaps the Minister will help us on that.
	I say all that by way of introduction—I have only two points that I wish to make. First, I wish to stress the importance of the very new United Nations Convention on the Rights of Persons with Disabilities. This was accepted by the United Nations General Assembly only on 13 December 2006. Article 25 of the convention specifically concerns health. Paragraph (f) of that adopted convention forbids:
	"Discriminatory denial of health care, or health services, or food and fluids, on the basis of disability".
	By its own definition, this of course includes mental disability or cognitive disabilities of any sort. I hope that I am right in presuming that the United Kingdom will be, if it is not already, a state party to this very important convention.
	Before we return to this issue later in the Bill, perhaps the Minister would very kindly do three things, either in his wind-up, or in a letter—it might be more convenient for him place a copy of the letter to me in the Library of the House. First, will he confirm that we either are, or intend to become, a state party to this extremely important convention? Secondly, will he give us a timetable—or at least an outline timetable—for the adoption of this convention? Thirdly, will he explain to me and noble Lords how he, his ministry and NHS professionals will abide by this very recent convention, which has not perhaps received the attention it deserved in the media because of the Christmas period between then and now?
	My second point is to raise, in the context of this amendment, the growing fears among some, to which my noble friend Lady Knight has already alluded in graphic terms in her admirable and very disturbing speech—I hope and suspect that they are generally unfounded—that there might be a risk of those with mental and physical problems, unwillingly or unwittingly being starved and/or dehydrated to death in NHS hospitals. I will not repeat what my noble friend and other noble Lords said about this very important issue.
	Some professional observers working in the service have, since Christmas, represented to me that to them the principle of saving life in the NHS is sometimes—not often—being subordinated to subjective judgments on the questions of so-called quality of life. That quality of life is all too often measured by what seems to me and to those professionals to be the wrong standards; that is, that of the mentally and physically fit and able, rather than people in their own terms.
	I hope that that is generally wrong, but there is a bit of evidence for it. There is even more evidence that people are fearful, and that therefore it does become a reality, which I suspect the Minister and his colleagues will have to deal with. I see a growing paradox in the fact that for many years now, people were very glad to carry organ donor cards in order to give; yet now I am told that there is a growing grassroots movement, in which some people are being given, and wish to carry, what I can only term in shorthand "self-protection cards". Should they go into hospital, they will attest through that card that they do not wish to be dehydrated and/or not fed. I have not seen these cards, but I am told that there is a growing movement to promote them around the United Kingdom. My noble friend Lady Knight, with her acuity and speed, has handed me one. It is orange, and therefore it is an all-party card. I will read to the Chamber from it. I never used to get this service in another place from my noble friend. I thought that I was her Parliamentary Private Secretary this afternoon, not the other way around. The human rights care card states:
	"I direct any person who has care of me at any time to uphold and protect my right to life as guaranteed by Article 2 of the European Convention. Under no circumstances do I want food or fluid (howsoever delivered) to be withdrawn for the purpose—or a purpose—of hastening my death".
	I have no present intention of dying, but I hope my noble friend will get me one of these cards, which is now hastening its way back to her.
	Perhaps the Minister has had the time to reflect on whether those cards have any force in law. Are they legally binding statements? If my present intention not to enter hospital turned out no longer to be true, and I had one of these cards and I was in hospital, is it a legally binding document? I wonder whether the Minister might be kind enough, having reflected on this issue, to draft a letter to me that can be placed in the House of Lords Library, giving a clear indication of whether the Government approve or disapprove of such cards. Perhaps the Government intend to introduce in parallel with the organ donor card a card such as the one that my noble friend Lady Knight has just drawn to the attention of the Chamber. I look forward very much to his reply in whichever form it comes, either orally this afternoon or by letter, or letters, later on.
	It is the first time that the noble Lord and I have debated in any place since he and I were rookie councillors in the old City of Oxford council chamber. The noble Lord, who I greatly admire, was a representative of what was then thought of as old Labour, just as I was a representative of what was then thought of as new Labour—

Noble Lords: Oh!

Lord Patten: New Tory. That was a Freudian slip, encouraged by the noble Lord, Lord Carlile. How things have changed.

Baroness Finlay of Llandaff: I rise briefly to comment on the amendments. The noble Baroness, Lady Knight of Collingtree, has done vulnerable patients in this country a major service. She has highlighted the dangers and disasters that occur when there is bad nursing care and bad basic care. She has highlighted the mixed messages that have come from medicine and have created fear among the public. She has also alluded to her presumption that the Minister will say that the amendments fall outside the scope of the Bill. Indeed, I expect that he probably will come back to her with that answer, but that should not dent her campaign to speak up for the vulnerable.
	I will try to clarify briefly some aspects for the Chamber. I declare an interest as I am on the BMA ethics committee. It has been said that feeding is a medical treatment. That is a very sloppy use of language. Artificial feeding is a treatment intervention, and we have to be very clear about that. Every patient has a right to have food and fluid. If they cannot swallow, and that is the problem, one has to look at the least burdensome way to maintain their hydration and nutrition.
	My own view is that fluids and food should be uncoupled. There are many instances where people cannot drink or keep their fluid intake up, which can be critical in some days, but it is not so critical if they cannot eat for some days. It takes much longer for nutritional deficit to come in. However, severe dehydration can result in renal failure very quickly. The artificial means are at issue, which is, basically, whether you put a tube directly into the stomach. In thin people that is quite an easy procedure, but in obese people that can be very difficult. If not possible for some reason, you might end up with intravenous nutrition. That is very complicated and, therefore, a treatment procedure. It is more complicated than much chemotherapy, which is used in cancer care, and must be classified as a treatment. Intravenous nutrition is very expensive and has many potential adverse effects, including the risk of septicaemia. You can make patients desperately ill, or kill them, if you get the mixture you are giving them wrong, either in its composition or the rate at which you give it. We can go right from the simplest, but the most important, feeding and drinking, right through to parenteral nutrition, which is sometimes needed. There will be many hundreds of patients in this country today who will be on parenteral nutrition and whose life will be maintained by it.
	It is also correct that there are patients who come in and cannot swallow. That swallowing assessment is usually made by a speech therapist. We live in a risk-averse culture, so there is a tendency to veer against trying some fluids again. I have been in a clinical situation with a patient who was not being given anything by mouth, because she had impaired swallowing. She desperately wanted a cup of tea. I made her that cup of tea and sat with her while she drank it. She managed to drink it down. She did not choke on it. She knew the risk of choking and I knew the risk of choking, but it was a risk that we were jointly prepared to take. I worry that the risk-averse culture that we have come to live in has meant that many nurses are finding themselves torn between wanting to let the patient try to drink again and knowing that there cannot be a speech-therapist reassessment—because of a shortage of speech therapists—for several days. It is also true that giving fluids is easy, whereas nutrition is difficult, as I said. You can keep patients at home with fluids run under the skin—subcutaneously—from a drip bag. You just put a nail in the wall—a picture hook will do—hang the bag on that and run the fluid under the skin. It is remarkably safe. You can even teach the family how to change the bag of fluid. Patients can stay at home with fluid going. Again, in our risk-averse culture that does not happen as often as it should, because people get frightened about doing things with drip bags at home.
	When the Minister responds to this amendment, will he be able to promise the Committee and all the vulnerable patients in this country that inspection standards will look carefully and rigorously at fluid and food for people who are vulnerable? My profession may not love me for saying that he might also want to ask the medical profession to be very clear in its definition of what a treatment is and of what falls under good standard nursing care, which should be the right of every patient. Clarification about advance statements will also be helpful. They will come in and will be important for every decision made for a patient who cannot make a decision for themselves, because those statements will inform that decision-making. They will need to be taken into account as the decisions are formulated.
	In a debate such as this, we very much miss Lord Carter, who worked so hard on the Mental Capacity Bill and on mental health. He, perhaps more than anyone, had knowledge and an ability to assimilate all the bits of information built up over so many years of experience. I am sure that the Minister will do admirably in his summing up and in his response to this very important amendment—important because of the principle laid out.

Lord Carlile of Berriew: My long-standing and considerable affection for the noble Baroness, Lady Knight, is equalled by my admiration for her ability to touch sometimes upon real and important issues. She has done exactly that today, and I am sure that I speak for everyone on these Benches when I say that we support the purpose and spirit of her amendment. This Chamber is full of lawyers and other experts, such as doctors, who tend towards the theoretical. The noble Baroness tends to avoid the theoretical by highlighting the real, the practical and the human—the actuality of situations—and she has done that powerfully today.
	What the noble Baroness has said has been evidence-based in every instance. The law is experienced in cases in which people refuse to take food, because hospitals have, from time to time, brought actions in the High Court to ensure that they are safe in their decision to compel patients to take food. The best-known case is that of Ian Brady, who was refusing to take food, and Ashworth Hospital was authorised to force feed him as part of his therapy. But we do not have anything like the same experience of actions in which a hospital is pursued for its failure to give food to a patient, because it is usually too late. As the noble Lord, Lord Patten, reminded us in another powerful speech, there are already international obligations to provide food to patients; the new United Nations convention to which he referred is the latest, but we have heard also about Article 2, one of the most fundamental provisions of the European Convention on Human Rights. There is a right to be fed and there is a right to expect those treating a person in hospital to feed that person.
	Those of us who have elderly relatives—in my case, I am happy to say, an extremely feisty, determined and independent mother in her 90s—know that determined elderly people like her, who value their independence, still live alone and look after themselves, are afraid of what will happen to them if they go into hospital. When they are in their own homes, they feel very independent and are very capable. But sometimes, when an elderly person of a similar age has been taken to a hospital due to an episode of illness, they can appear to be completely disoriented and they feel utterly disempowered. The noble Baroness's amendment would ensure that we could say to very elderly people, "You don't need to be afraid to go into hospital, because you have some rights". Those rights would be there, not only under theoretical international obligations, but written down, either in statutory form or in codes of practice.
	I would like to hear the Minister say that the Government recognise that there is a problem, that from time to time some very bad cases appear, as described by the noble Baroness, and that it would be right, somewhere in the framework—whether in the Act or in codes of practice—to ensure that it is made clear to clinicians at all levels that potentially vulnerable patients cannot be left to starve and that they have the right to food and/or liquid—bearing in mind the problems expertly aired by the noble Baroness, Lady Finlay. I hope that the Minister will support at least some of the principles behind the amendment.

Lord Hunt of Kings Heath: I congratulate the noble Baroness, Lady Knight, on taking the opportunity to bring before us what are clearly very important matters. She has waited patiently for two days. I am sure that she thought she might be moving the amendment on the first day, but we have all waited with anticipation. I was very concerned about what she had to say. I was also very concerned about some of the other remarks made by noble Lords about vulnerable people not wishing to go into hospital for fear of what may happen to them in a number of ways.
	As a number of noble Lords have anticipated, I do not think that amendments to this Bill or to other Bills are the way forward. I clearly understand the need for us to ensure that the health service is absolutely clear about the principles under which food and drink should be given, and that there should be no doubt whatever in the health service about that. I shall describe later how I think that might best be done.
	I particularly would like to underpin the comments of the noble Baroness, Lady Finlay. These are often very difficult clinical decisions that have to be made by doctors. I also think that we have to be understanding about some of the issues they have to consider when considering the patient's best interests.
	I completely agree with the noble Baroness that food and water, however delivered, should never be withheld if it is in the best interests of the person to receive it, and that the offer of food and water by mouth should always be provided. I also say that assessments of an individual's best interests must be at the centre of decision-making on behalf of people who lack capacity to make decisions. That is true now, and it will be strengthened by the Mental Capacity Act when it comes into force later this year. It is, therefore, the person's best interests that we have to consider when considering these amendments.
	A best interest assessment about treatment entails a thorough assessment of someone's condition, their prospects of recovery, the pain they are suffering and any burdens associated with available treatments, including invasion of bodily integrity and interference with human dignity. Let us be quite clear here: it will not always be in someone's best interests to have every available medical means of delivering nutrition and hydration imposed on them.
	I would like to follow up the comments made by the noble Baroness, Lady Finlay, in that regard. Where a patient cannot swallow, water can be provided by intravenous drip, but food can only be delivered by a tube down the nose or surgically inserted into the abdomen. That must surely be a medical intervention. Doctors and families will need to decide whether such treatment is in all the circumstances in the best interests of the patient. In doing so, they must have regard to what they know about the patient's own wishes.
	I understand that there are risks associated with artificial nutrition and hydration, as with any significant intervention. My understanding is that there is an infection risk. A fluid balance must be monitored to avoid waterlogging. Regular blood tests are needed to monitor the kidneys. It is common to have to manage diarrhoea and regurgitation. Nausea and vomiting may result in certain clinical risks.
	There are circumstances where the provision of artificial nutrition and hydration might do more harm than good. For example, if the patient can no longer absorb food and water because their digestive system has broken down, it might be better to refrain from tube-feeding and instead continue to give good mouth care, sips of water and palliative care. My understanding is that the wording of the amendment might mean that artificial nutrition and hydration had to be continued in these situations. These will never be easy decisions to make. The Mental Capacity Act recognises that they depend on what is best for a person; it recognises that proper care and treatment should be given and not wrongly withdrawn. The intention behind the amendments and some of the speeches made today might be to remove choice or flexibility in these sensitive and very personal matters.
	The noble Baroness, Lady Finlay, gave the example of a patient who desperately wanted a cup of tea, and said that in a risk-averse culture many practitioners might have been reluctant to give that patient a cup of tea. I understand that, but the noble Baroness also illustrated the reason why clinicians must have discretion in dealing with those issues, and why it is very difficult to describe in legislation how you would deal with such a situation. That is why some of the concerns raised today seem to be much more a matter of malpractice and negligence, rather than what is contained in the legislation. As the noble Baroness, Lady Barker, pointed out on Report in the Mental Capacity Bill, there is a world of difference between bad practice, which is inexcusable and in no way permitted by that Act, and the deliberate withdrawal of a patient's treatment in that patient's best interest.
	The noble Baroness, Lady Knight, made some very serious allegations; she referred to patients being starved to death. I have great admiration for the noble Baroness; she was of great help to me when I was director of the National Association of Health Authorities, based in her constituency. I am very concerned to follow up any incidents that she knows of and am happy to meet her to discuss them. She has raised matters of clear and evident concern.
	The noble Baroness also talked about problems in feeding patients in the health service more generally. She raised the issue of bedblocking—a term I deplore. The duty of the health service is to give proper care and treatment to patients. It may often be the case that in order to prevent patients becoming institutionalised, and to enable them to go home or into other settings where they could be as independent as possible, various approaches need to be taken to enable people to get up and about as soon as possible. The term "bedblocking" and its connotation is something that I cannot accept in any circumstance.
	I have taken on ministerial responsibility for food, so I fully understand the challenge. In recent years the health service has sought to improve the quality of food and to deal with the issue of how patients are given food on the hospital ward. The concept of modern matrons was partly developed to deal with those issues to ensure that the nurse in charge of a ward had responsibility and authority. I will do everything that I can to ensure that that message is reinforced by the Chief Nursing Officer in regular communications with nurses.
	Several noble Lords, especially the noble Lord, Lord Carlile, and the noble Baroness, Lady Finlay, asked me: if legislation is not the route, what assurance can I give that the matter is taken seriously? We have asked the health and social care inspectorates, including the Healthcare Commission—the bodies responsible for ensuring that proper standards are provided in NHS facilities and in social care establishments and services—to put older people's dignity at the centre of their investigations.
	I understand that those regulators plan to take greater account of how older people are treated, including whether they are given the help that they need to eat or drink. However, I accept that in the light of this afternoon's debate, I need to ensure that the messages given today are heard by those regulators loud and clear. I will do just that. Picking up the comment made by the noble Baroness, Lady Finlay, if there is doubt among medical professions about some of those important matters, I am happy to institute discussions with the professions to see whether more guidance is required.
	A number of other points were raised. I think that it is the first time that the noble Lord, Lord Patten, and I have debated across the floor of a chamber since about 1977, but it was good to hear his intervention. My understanding is that the orange cards would be considered as a statement of the wishes of a patient under Section 4 of the Mental Capacity Act and should be considered as part of a best interests decision, but they do not represent a legal proposition that must be absolutely accorded with.
	The noble Lord asked me about the UN convention. I answered an Oral Question in your Lordships' House as a DWP Minister a few weeks ago on that. Of course, the UK took a prominent role in developing the convention—both itself and as part of the EU negotiating team. When I answered the Question a few weeks ago, my understanding was that the implications of that for current legislation were being considered across Whitehall. I will send the noble Lord a note telling him where we have got to. There should be no doubt that we as a Government have very much supported the work in the UN to produce such a charter.

Lord Patten: The Minister is being extremely kind in his response, despite my unkind suggestion that he might ever once have been thought of as old Labour. Can he say whether the Government approve or disapprove—in general terms, not in a legal sense—of people as a statement carrying the card to which I alluded and of which my noble friend Lady Knight provided me with my first example?

Lord Hunt of Kings Heath: Without commenting on the wording of the card, which I have not seen, I state that, as a general principle, the more that we as individuals consider some of those difficult issues, the more we can come to a view ourselves and the more we discuss it with our relatives so that they know our views, the better. Yet when it comes to making what will often inevitably be a difficult decision, it can only be one of a number of factors when considering the best interest principle.
	The noble Earl, Lord Howe, asked about the implementation of the Mental Capacity Act. I think I have answered that but, essentially, part of it comes into force on 1 April. From then, the duty on the NHS and local authorities in relation to independent mental capacity advocates, and some directly related elements of the Act to support those arrangements, will be in effect in England, as will the code of practice and the criminal offence of ill-treatment and wilful neglect. From October 2007, all other elements of the legislation will be operational, including the new court of protection, the public guardian and the office of the public guardian, and the lasting powers of attorney.
	While I do not agree with the legislative route that the noble Baroness proposes, she has raised some serious issues in relation to practice within the health service. I undertake to ensure that the appropriate actions are taken by those people responsible for inspecting the NHS. I will talk to the medical professions in the light of this debate. The clear message one wants to give is that the health service should be not a place of fear but a place of treatment and support. I believe that it is in the great majority of cases and that NHS staff do a very good job. Often they have to make difficult decisions. There is more to do and today's debate had identified an area where we need to do more.

The Countess of Mar: When inquiring into these points, the Minister should take the opportunity to look at what is being taught to doctors and nurses about their position in law vis-à-vis their patients. I have heard it said that we cannot wash a patient because it might be an invasion of their privacy, and I suspect that the same might apply with moistening and cleaning patients' mouths.

Lord Hunt of Kings Heath: I am certainly happy to look at that.

Lady Saltoun of Abernethy: How quickly can the Minister take the actions that he has said he will? This is now a matter of considerable urgency.

Lord Hunt of Kings Heath: There are a number of issues here. I have asked the noble Baroness, Lady Knight, to supply me with specific, concrete examples, and I am happy to meet her to discuss those. More generally, the role of the health and social care commissions is to inspect health and social care against standards. That is clearly a long-term programme of work but we want them to put a particular focus on the dignity of older people, on which much of this debate has centred. It is long-term work but I will ensure that the matters raised in this debate will be communicated as quickly as possible. I said that I am happy and willing to do so, and offer to write to the medical professions in the light of the debate today. I will do everything I can to ensure that some of these very important issues are communicated to the people who have the most authority.
	One must understand that this discussion is very much about practice. Inevitably, it can sometimes take time to improve practice. I do believe that practice is improving in general and, as we have discussed, in relation to food. As I said, clearly we need to ensure that it continues to do so, but I want noble Lords to know that the Government take this issue very seriously and that we want to ensure that the health service understands the messages that all noble Lords have sent in this debate.

Baroness Knight of Collingtree: I appreciate more than I can say the very kind and generous way in which the Minister has replied to this debate. He has shown me an inordinate amount of thought, care and sympathy compared with that shown in some of the other debates, and I appreciate it so very much. I will be delighted to accept his invitation to talk with him about some of the evidence that I have received. I know that we will be able to do so before too long.
	My noble friend Lord Howe mentioned medical treatment versus feeding. As I said, I do not know when this came in, but I do know that it is now an accepted rule, and the noble Baroness, Lady Finlay, was quite right to say that there is a big difference between feeding people ordinary food and drink and having to do so in the invasive manner that she described.
	I was also asked whether any family had taken a hospital to court. Several families tried, but it was quite impossible to get any solicitor to take up a case against the mighty NHS. This was said when I was making inquiries and receiving evidence for my Patients' Protection Bill. So many members of the legal profession felt that they were on an absolute hiding to nothing, because to take on the mighty NHS meant pretty well taking on a hopeless case. What was shocking about a recent inquest, which was reported quite fully, was that the hospital involved tried to lean on the coroner to bring about a certain response. It went so far as to tell him in a written submission, which I have seen—indeed, I read from it in the last debate that we had on this matter—to take no notice of the two medical experts who had spoken on this matter because they happened to be Roman Catholic. So far as I am concerned, if you are a medical expert, your views are entitled to be heard, whether you are Catholic, Muslim, Jew, Methodist, or whatever you are. This and many other such materials and pieces of evidence are what have worried me so much.
	I very much agreed with many things that the Minister has said. Of course I realise that the amendment was not the ideal vehicle, but my concern has been to stop the slide into acceptance as the norm of helping a few people each week to die by withdrawing food and liquid. This shocks me so much, so although I intend to withdraw the amendment, I must tell the Minister that I will not leave this alone. I shall return to it—I shall keep on and on in one way or another—until patients in hospital receive the protection that they deserve from our health service. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 7 [Change in definition of "medical treatment"]:
	[Amendments Nos. 11 and 12 not moved.]
	Clause 7 agreed to.
	[Amendment No. 13 not moved.]

Earl Howe: moved Amendment No. 14:
	After Clause 7 , insert the following new Clause—
	"CHAPTER 1A Treatment safeguards
	Electroconvulsive therapy
	(1) Section 58 (treatment requiring consent or a second opinion) of the 1983 Act is amended as follows—
	(a) at the beginning of subsection (3)(b) insert "except where the treatment is electroconvulsive therapy"; (b) after subsection (3)(b) insert "; or (c) subject to section 58A, in the case of electroconvulsive therapy a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition the treatment should be given."; (c) in subsection (4) after "(3)(b)" insert "or (c) or section 58A or section 63A".
	(2) After section 58 insert—
	"58A Treatment for patients under 18 requiring consent and a second opinion
	(1) Subject to section 62 below, a patient under eighteen years shall not be given electroconvulsive therapy, unless a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that—
	(a) the patient is capable of understanding the nature, purpose and likely effects of that treatment, and has consented, and that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or (b) the patient is incapable of understanding the nature, purpose and likely effects of that treatment, and either— (i) a person who has parental authority for the patient understands the nature, purpose and likely effects of that treatment and has consented to the treatment and that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or (ii) the High Court has determined that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
	(2) For the purposes of treatment given under this section, either the registered medical practitioner responsible for the patient's treatment or the registered medical practitioner providing the second opinion shall be a clinician with special training in child and adolescent mental health.""

Earl Howe: In speaking to Amendment No. 14, I shall speak also to Amendments Nos. 15 and 16, which are important amendments about electroconvulsive therapy. Amendment No. 16 relates to Section 62 of the 1983 Act, which covers urgent treatment and states that when it comes to urgent treatment that may be considered necessary for various specified reasons, the special treatment safeguards in Sections 57 and 58 do not apply. As far as ECT is concerned, this means that there is no need for a second medical opinion if the patient has refused consent or where he lacks capacity to consent. I want to suggest very strongly to the Minister that it is time to change that position. I believe that we should look at changing the whole basis on which ECT is administered, even when there is no emergency.
	ECT has been around for a long time, but there is no doubt that over the past few years medical opinion and attitudes in relation to it have changed. There is now a consensus view—incidentally, it is reflected in the NICE guidance—that the wishes of the patient in relation to ECT should be of paramount importance and that valid and informed consent should be obtained before it is used. There is quite a spectrum of opinion about ECT. There are those who acknowledge that it has adverse side effects but who believe that these are generally tolerable if the treatment is likely to prove effective. However, there are those who feel equally strongly that the side effects are quite simply unacceptable. The side effects can include brain damage, severe confusion and considerable cognitive impairment. These adverse effects can be long-term. Some patients find that ECT works for them. Others do not find it acceptable or therapeutic and can have very strong feelings against it; often, they can be terrified of it.
	The royal college is firmly against compulsion in ECT and has made the point that if a patient retains decision-making capacity, he or she cannot be sufficiently ill to warrant ECT without his or her consent on the grounds of it being a life-saving emergency. I believe that that point should weigh very heavily with us. Because ECT can have irreversible side effects on memory and cognition, it is possible to interpret Section 62 to mean that it should not be available as an urgent treatment except under Section 62(1)(a); that is, where it is,
	"immediately necessary to save the patient's life".
	But there is uncertainty over this. The wording implies that a form of treatment is not in and of itself irreversible or hazardous, but that it might be either or both of those things in any individual case. That legal uncertainty is most unsatisfactory for patients, families and clinicians. Some people have argued that ECT may be given legitimately under all the provisions for urgent treatment in Section 62, not just in subsection (1)(a).
	However, there is now a very widely held view in the medical community that a treatment which is potentially hazardous and irreversible should not be given without a second opinion except in the most compelling circumstances; for instance where it is immediately necessary to save someone's life. Further, if a patient has indicated in a valid advance directive that he or she objects to ECT, that express wish should be honoured. In circumstances where informed consent is not possible, for whatever reason, advance directives should be taken fully into account and the patient's advocate or carer consulted.
	It is in any case not at all clear that ECT can ever be an immediately life-saving treatment in comparison with other treatment options. The British Psychological Society has expressed that view. Certainly it is highly unlikely that ECT would ever be the only treatment available for a patient. In fact, no direct evidence has been found to show either an increase or decrease in mortality in patients who have received it, and the evidence we do have suggests that even severe illnesses respond better to intensive nursing and medical care.
	So I believe we should now look at ECT with fresh eyes. Among clinicians it is controversial in terms of the balance between its effectiveness and its often serious adverse consequences. It excites extremes of antipathy among many patients as a process that is uniquely invasive and distressing. These considerations should encourage us to accept not only that the emergency use of ECT should be restricted to the narrowest of circumstances, but also that its use more generally should be limited by law. It is the firm view of the Royal College of Psychiatrists that it should never be administered to any patient without consent if the patient has capacity. That view was accepted in principle by the Government in the 2004 draft Bill. The technology appraisal published by NICE is equally clear about it. In Amendment No. 14 I am proposing that the Act should reflect what the Government and the professions are signed up to: where a patient with capacity refuses ECT, it should not be given; and where a patient is without capacity, it should be given only where the doctor, giving a second opinion, has expressed his opinion in writing that it is likely to have a clear therapeutic benefit.
	If we accept that these amendments are necessary and right in the case of adults, as I hope the Minister will, then we undoubtedly need to look carefully at the issue of ECT as it relates to children. In Amendment No. 15, I propose that in the case of any patient under the age of 18, ECT may be given only with their consent and after a second opinion. The consent would have to be that of the patient themselves where they were capable of giving it, or if they were not, then that of a parent or, if need be, the High Court. These proposals represent quite a considerable change from the current position. At the moment, children and young people can have ECT on parental consent alone. If there is no parental consent, or consent is refused, it can be administered against the young person's wishes if a second opinion authorises it. I do not believe that this situation is any longer acceptable. Certainly it is true that ECT is used only rarely in this country on patients under 18, but that does not make the issue any the less serious. We know that the adolescent brain is still changing and developing in its structure. The guidance issued by NICE in 2003 states that the risks associated with ECT may be enhanced in children and young people and that particular caution should be exercised before it is administered to this group of patients.
	The draft Bill of 2004 would have introduced a tribunal or court authorisation of ECT for all patients aged under 16. The amendment tries to provide for a second opinion under the SOAD—second-opinion appointed doctor—system, which goes some way towards matching that safeguard. It also requires that either the young person's own doctor or the SOAD is a child and adolescent practitioner so as to ensure specialist involvement before ECT is given.
	I very much hope that the Government will respond positively to these amendments, and I beg to move.

Lord Bragg: I rise briefly to support the amendment proposed by the noble Earl, Lord Howe, and echo what he said, particularly the word "invasive". ECT is extremely invasive, and people's experience of it varies enormously. For some it works; for others it is "hell on Earth", as the Mind survey says.
	I have known people who have suffered greatly from this treatment. We now know that it potentially has highly adverse effects on memory, inducing memory loss. In a Mind survey a few years ago on people's experiences of ECT—and I declare an interest as president of Mind—adverse psychological effects featured prominently. Those who had been abused in the past felt violated again; others felt fear and anxiety. As the noble Earl, Lord Howe, and Mind point out, people with the capacity to make their own decisions should be able to do so. The autonomy of the patient should be pursued. That is especially so with such an invasive treatment and such uncertain outcomes. Once again, this is trying to give those who are mentally ill the same rights as those who are physically ill.
	There is no justification for administering ECT, especially against a person's will, in a service that may not meet minimum safety standards. As has been said, the Royal College of Psychiatrists' ECT accreditation service already includes about 50 per cent of ECT clinics on a voluntary basis. Accreditation should be required before ECT can be given. I therefore support these amendments.

The Countess of Mar: I also support the amendment. My mother would have been enormously grateful to the noble Earl, Lord Howe, had she lived. From the late 1940s through to 1960 she was regularly given ECT. Initially she used to be strapped down on to a bed with no sedatives or tranquillisers. She bore the scars of the terminals on her forehead for the rest of her life. She also bore the wounds from a leucotomy. The barbarism of psychiatrists in those days is hard to believe.
	The actual treatments themselves did her no good whatever and, indeed, impaired her memory. Fortunately she was a very doughty lady—I loved her dearly, though we used to have awful fights sometimes—and in the end her last four years were peaceful and calm. She said that those years were the happiest of her life. In those years she had absolutely no medical treatment as far as psychiatrists were concerned.

Baroness Neuberger: Other noble Lords have said a great deal to support the amendments in this group. I shall speak very briefly to support the noble Earl, Lord Howe, especially on Amendment No. 15, but we on these Benches support all these amendments. The most worrying aspect for me is that it has been relatively easy, with relatively few safeguards, to give ECT to young people under 18. I hope the noble Baroness, Lady Murphy, will say something about that from the viewpoint of those in practice. I therefore feel particularly strongly about Amendment No. 15.
	Last week some of us received a briefing from the organisation Young Minds. Mike Shooter, the immediate past president of the Royal College of Psychiatrists, is now its chairman. It was very interesting to hear what they had to say about young people, particularly those in the age group composed of 16 and 17 year-olds—those who are considered somewhere on the boundary between adulthood and childhood. Nobody truly knows how young people's brains develop or what effect ECT has on a developing brain. Kathryn Pugh told us about the views of young people who have experienced ECT and of some of the psychiatrists who have been involved in it. It was distressing indeed. Mike Shooter gave her permission to tell us the following story:
	"The one time I treated a young woman under 18 with ECT was one of the hardest decisions of my professional career. This young woman was manic, she couldn't engage with us in any way and I really feared if we couldn't reach her and help her, that she would die. We discussed ECT endlessly and sought more than one independent opinion. We went ahead with ECT, and it was the best decision we could have made. ECT didn't make her well, but it enabled her to accept and engage with other treatment".
	I think that the whole Committee will be fully behind the amendment, which insists on a second opinion, and that that opinion is taken seriously indeed.

Baroness Murphy: ECT is not getting a very good press here tonight. So, while strongly supporting these amendments, I would like to bring us back to some practical science and what we know about ECT.
	It is true that ECT has been grossly misused in the past. I remember going to see the film "One Flew Over The Cuckoo's Nest", turning to my husband afterwards and saying, "Goodness me, we never use ECT like that". The following week, the 10-year review inquiring into St. Augustine's came out. It described ECT being used in exactly that way. It was deeply shocking for me as a trainee at that time.
	It is also true that ECT has been used much less often in the past 20 years. It is good to see how little it is used now in most services, but the evidence is that for people with profound depressive, biological types of illness—particularly those in later life, over the age of 60—those illnesses are life-threatening. People die of depression. The mortality rate among those in a depressive stupor is quite high. If you have seen someone near death because they stopped eating and drinking get a little toehold on life again, to enable you to give them the intravenous medications which might enable them to respond over a longer period to medicine, it is very difficult to say, "I will never give that treatment again".
	Unfortunately, it is also true that many of those who do respond relapse within three or four months, but although that sometimes happens, ECT is sometimes the only option that one can think of. Nevertheless, as other noble Lords said, we recognise the deep fear, anxiety and revulsion that this treatment creates in many patients' minds. It seems essential that people should be able to refuse it when they have full capacity.
	As for emergency ECT under Section 62, only very rarely does it seem necessary to give such treatment. I am rather sceptical about it. Someone would have to be profoundly dehydrated to warrant it, and ECT would be a long shot. One would not be able to wait until Monday or a second-opinion doctor was available. I cannot envisage a scenario where a fully capacitated patient who was able to consent would fall into the need for urgent treatment. So this amendment does ensure that a person with capacity who does not consent should not be subject to ECT in emergencies.
	I know that Mind has been pressing for a total ban on ECT in children. I say to the noble Lord, Lord Bragg, that initially I was very sympathetic to the idea of tabling an amendment to that effect. Several US states have banned it but not for reasons of science. The literature is poor. There are about a dozen cases every year, few international series and no randomised control trials. Again, though, with regard to the sort of young person who is given this treatment, the recent literature shows that in almost all cases the people concerned in administering ECT have gone out of their way to seek second and third opinions and a consensus decision from the clinical team. So in practice such treatment is happening very rarely. However, it may be life-saving for a child who is seriously ill and in a depressive catatonic stupor, which is a very rare occurrence. NICE considered the options carefully and, on balance, decided that it was not wise to ban the treatment if perhaps one child's life could be saved by it. The extra safeguards therefore seem to be the way forward. ECT is always a last resort. I personally would not want to ban it if it saved one child from that appalling condition, depressive stupor.
	I give my full support to these amendments. We have come a long way, but let us not forget that just occasionally patients ask for ECT because it helped them the last time they had a depressive illness. When it is feared and not sought and the patient has no capacity, however, the treatment should not go ahead.

The Lord Bishop of Ripon and Leeds: I support the amendments and the noble Earl, Lord Howe, in his presentation of them. This is perhaps the most crucial of the examples of valuable safeguards that we have lost through the withdrawal of the 2004 Bill, and it would be good to have them reintroduced here. I speak in particular from contact with chaplains within the mental health service and their own discussions about the use of ECT, its dangers and its desperately invasive nature, as well as the rare occasions on which it is, in their view, the appropriate way forward in treatment. I am aware of circumstances where ECT has indeed been very damaging to people, but also of those where it has been helpful.
	The chaplains to whom I have spoken have affirmed the need for consent as a crucial part of the use of ECT. When that consent is there, the patient goes along with the treatment, wants to be a part of it and provides their acceptance. Where that is lacking, the danger of ECT is even more considerable. I hope the Minister will be able to accept these amendments and this way forward in providing additional safeguards for those who are at a very difficult and damaging point of their lives because of their mental health.

Lord Williamson of Horton: I join the noble Earl, Lord Howe, and others in hoping that the Minister will be able to respond favourably to these amendments about electro-convulsive therapy. I think we all know that many patients see it as—and indeed it is—quite different from other types of treatment. It is not at all uncommon to find a mental health patient who considers that his future treatment has been prejudiced by the fact that he had ECT at an earlier stage. I have met patients who feel that way. They may be totally wrong, but they believe it, and it has a serious impact, not just at the time but perhaps for many years afterwards. I hope we can reach a situation where there is no ECT without consent, and where the treatment of patients under 18 is given special attention.
	Like many others, I would like there to be no ECT for patients under 18, but I understand the points made by, for example, the noble Baroness, Lady Murphy, and therefore go along with the amendment that introduces a second opinion from a clinician with special training in child and adolescent mental health. That is a step forward; I would have hoped we would have been able to take a bigger step, but at least we ought to try and take that one. I hope the Minister will be able to respond favourably.

Lord Patel: I support these amendments. I agree that if there had been an amendment that banned ECT for under-18s I would have supported it, but, having listened to the noble Baroness, Lady Murphy, I am happy to support Amendment No. 15 as it is. ECT is not a very pleasant form of treatment; it should be used only with safeguards, and these amendments address that.

Baroness Meacher: I also support Amendment No. 15, tabled in the name of the noble Earl, Lord Howe, and will limit my remarks to the giving of ECT to people under 18. I too was asked to table an amendment that would have banned the giving of ECT to young people in any circumstances, but, having studied the research evidence on the subject, and from my own personal experience of patients who have undergone ECT, I was not persuaded that that was the right course of action. The Howe amendment, on the other hand, allows ECT to be given to young people in extremis, and for me the evidence to date supports that.
	The British Psychological Society document Depression in Children and Young People provides a valuable review of the giving of ECT to young people. There are significant concerns about the adverse effects of ECT; as other noble Lords have said, it may cause short- or long-term memory impairment for both past and current events, and those risks may be enhanced in children and young people, that being the crucial point for me in this short debate. NICE also concludes that there is insufficient information to allow appropriate risk-benefit assessment for children and young people. For both reasons, NICE recommends that clinicians should exercise particular caution when considering ECT treatment in that group. The amendment ensures that clinicians will comply with the NICE guidance, which is a sensible measure for this Committee to ensure.
	The recommendations of the American Academy of Child and Adolescent Psychiatry in 2002 are also a helpful guide to practice. If ECT is to be given, a number of conditions should apply. The following three are absolutely central, and the noble Earl's amendment is designed to ensure that these conditions are met at all times. First:
	"The symptoms must be severe, persistent and significantly disabling, including life-threatening symptoms such as refusal to eat or drink, severe suicidality, or florid psychosis".
	Secondly:
	"Other treatments should have been tried and failed, including at least two or more trials of appropriate psychopharmacology, unless the severity of symptoms precludes waiting for a response to other treatments".
	And thirdly:
	"A psychiatrist experienced in the use of ECT, but not involved in the case, should give a second opinion".
	In May 2003 NICE published its guidance on ECT for depressive illness, schizophrenia, catatonia and mania. NICE follows a similar line to the American Academy, and recommends that ECT,
	"is used only to achieve rapid and short-term improvement of severe symptoms after an adequate trial of other treatment options has proven ineffective and/or when the condition is considered to be potentially life-threatening".
	The draft Mental Health Bill published on 8 September 2004, which others have referred to, provided for very stringent safeguards. For some reason, those have now been lost. This amendment would at least go some way towards restoring them; it is less stringent, but I think it would achieve the desired objective.
	If there are insufficient data on the long-term effects of ECT, and if it is known to carry risks, why not ban it? We can turn to the views of young people who have been given ECT and their parents to provide part of the answer to that question. Three studies, undertaken in 1999 and 2000, of a total of 64 young people who had received ECT and their parents found that a small majority of the young people believed the treatment had been helpful. Most had experienced memory loss—one of the major concerns about ECT, as we know—but "this had largely resolved over time". A further study, undertaken in 1999, of 87 patients with depression who had been treated with ECT aged 18 years or younger showed that 67 per cent had remitted or showed marked improvement of symptoms after treatment. I just do not think we can ignore the experience of people who have been through the treatment.
	We are concerned here with a very small number of the most severely mentally ill, as others have said. Richard Duffett, consultant psychiatrist at Goodmayes Hospital, provides us with, as far as I know, the only statistics available. As the noble Baroness, Lady Murphy, has quoted, he gives a figure of some 12 cases a year. The amendment will guarantee the safeguards necessary to ensure that ECT continues to be given to only a small number of young people with exceptionally severe mental health problems. I hope the Minister will give sympathetic support to this important amendment.

Lord Acton: Of the studies that the noble Baroness quoted, was the benefit of ECT shown soon after it was given, or was there a considerable gap?

Baroness Meacher: To my knowledge, the effects tend to happen very soon after ECT is given. I think there were studies about the consequences of ECT over a six-month period. The research that I am thinking of showed that, over that longer period, the results of ECT and drugs were similar. Therefore, my conclusion is that wherever possible one gives drugs and not ECT. I have tried to make the point that where a child's life is in danger—and only when a child's life is in danger—one should use ECT to save a life. In assessing whether a child's life is really in danger, one needs a second-opinion doctor and the opinion either of the child, if he or she has some capacity, which, frankly, is unlikely in the circumstances, or the consent of a parent. It is a matter of putting in all the safeguards one can to save a very small number of lives.

Lord Patel of Bradford: As I have previously declared, I am chairman of the Mental Health Act Commission and as such I have an interest in all the debates concerning this Bill.
	I wholeheartedly support the part of the amendment that seeks to ensure more effective safeguards in the use of electro-convulsive therapy for under-18s, and I support the noble Lords who tabled it. However, I have a number of questions, on which the Committee might wish to reflect, about an across-the-board introduction of a mental capacity test, as suggested by the first part of Amendment No.14.
	I begin by drawing the Committee's attention to the Mental Health Act Commission's concerns over the Government's previous proposal, in their draft Mental Health Bill of 2004, that ECT should not, except in an emergency, be given to patients deemed capable of refusing consent. The commission's data on second-opinion authorisations of ECT showed that in 2002-03, ECT was authorised by a second-opinion, appointed doctor in the face of a patient's capable refusal of consent on 834 occasions. That amounts to 40 per cent of all the second-opinion doctors' authorisations of ECT in that year.
	The Mental Health Act Commission asked the Joint Committee that was considering that Bill in its biennial report to Parliament what would be likely to happen to this proportion of patients who receive treatment under the present legal framework if the proposed change to that framework were made. The possibilities seem to be that such patients would simply no longer receive ECT, they would receive it under emergency powers, or the assessment of their capacity would change and they would be found to be incapacitated. The MHAC suggested that the first possibility—that this cohort of patients would simply no longer receive ECT treatment—was the least likely, given that the second-opinion system had already determined that such treatment should be given according to the tests of medical necessity established in case law. It seemed more likely that the second and third possibilities would occur: that we would see a rise in the use of emergency powers or a rise in the proportion of patients deemed to be incapacitated as regards making decisions about ECT.
	It would be worth exploring how we can address some of those questions more fully and provide the necessary safeguards in respect of an across-the-board introduction of a mental capacity test, as suggested by Amendment No. 14. The indeterminate nature of the concept of mental incapacity could make it an uncertain legal threshold in this important context. Nevertheless, while raising these broad issues, I support without reservation those parts of the amendments that would result in more effective safeguards in the use of ECT for under-18s.
	Thankfully, I do not believe that ECT is used widely for children and young people. The last government survey of 2001-02 counted only four patients between 16 and 18 to whom ECT was administered. However, although the numbers affected appear to be low, we must not be complacent about the need for effective safeguards when such severe treatment is considered for young people. Over the past three years, the Mental Health Act Commission has been aware of nine patients under the age of 18 for whom ECT has been considered, although our data is unlikely to be complete, as the Mental Health Act Commission becomes aware of such patients only if, first, they are detained under the Act's powers, and, secondly, if they cannot, or will not, consent to ECT so that a second-opinion doctor's certification is required. Of course, this amendment would mean that a second-opinion doctor would have to visit all patients under 18, whether or not they were deemed to consent. I welcome that aspect.
	I am sure that the Committee will share my concern at the lack of complete data, and I shall be returning to this issue when I speak to my later amendment on notifications to the Mental Health Act Commission. But I am certain, as noble Lords would expect, that the nine young people whom we know about, for whom ECT was reviewed, were suffering from the most distressing conditions and were generally in a very desperate state.
	In preparation for today's debate, I was able to read the doctors' reports on visits to five of these young people over the past two years. The youngest was aged 15, one was 17 and the other three were 16 year-olds. Four of the five were teenage girls. Their diagnoses all involved severe depressive psychoses, with at least a tentative diagnosis of anorexia nervosa in three of the girls, although all four were being fed by nasogastric tube as a consequence of their refusal of food and fluids. None was deemed to have the mental capacity to give or withhold valid consent to their treatment. Each of them had at least one visit from a second-opinion doctor to consider ECT treatment and some had three or four visits in that time.
	For two of those five patients, the second-opinion doctors declined to authorise ECT on the grounds that the situation was not yet desperate enough to warrant it, or that other alternative treatments had not yet been exhausted. For example, the fact that one patient was accepting food and drink was cited as a reason why, in this case, ECT should not be administered. In another case, the second-opinion doctor specifically recommended that, if ECT were to be considered again, the advice of a psychiatrist with appropriate expertise should be sought, and that this should take place prior to any request for a further statutory second opinion through the Mental Health Act Commission's offices.
	In three cases where ECT was authorised, a single course, which is 12 treatments, was given. In the fourth, which concerned the youngest—and from the records that I have seen, the most desperately ill of all the patients—a total of 20 ECT applications was authorised. This 15 year-old girl was tormented by terrible delusions of becoming contaminated through food, or even through contact with others who had eaten. She frequently needed to be under close supervision to prevent her from severely harming herself and she was extremely withdrawn. I do not doubt the severity of this case and the ECT was reported to have had an initial positive result, but that was short-lived. In fact, the progress she has made since is largely attributed to a combination of psychiatric drugs and family therapy, which has continued throughout her hospitalisation.
	It seems to me that wherever there is doubt about the long-term benefits of a treatment there must be greater caution in its use. That is never stronger than with respect to children and young people. I hope that the Committee will agree that decisions to use ECT in such cases should be taken only with the greatest care and deliberation. If we can strengthen the safeguards to ensure that, I think we should do so. I sincerely hope that the Minister will agree with this, whether or not he is prepared to accept the exact wording of that part of the amendment dealing with ECT for children and adolescents.
	I have spoken mostly to that aspect of the amendments because I believe that the safeguarding of children and young people must be considered separately from that of adults. I most strongly urge the Government to accept that. If they cannot accept those aspects of the amendments as they stand, I urge them to come back with a proposal that will have a similar effect.

Lord Hunt of Kings Heath: It is entirely understandable that there should have been a debate about ECT which reflects both historic concerns about its previous extensive use—and, in many cases, poor clinical practice—as well as more modern approaches where ECT may be used. Clearly there are differing views about the use of ECT, some very hard-felt, and it is absolutely right that we should reflect on them.
	Equally there is evidence that ECT can be effective in certain circumstances in the treatment of some psychiatric conditions, such as depression, schizophrenia, catatonia and mania. It is a treatment that I understand to be especially useful in dealing with severe depression, in particular where other treatments such as medication may not be ideal. We have to establish the appropriate balance between ensuring that treatments that may be effective are available for the benefit of patients and ensuring that sufficient safeguards are in place.
	These amendments would place new restrictions on the use of ECT. They would stop clinicians administering ECT to patients detained under the Act who have the capacity to consent to it but who do not consent, even in emergency cases. In other words, the potential effect of the amendments is to take away from clinicians a way of saving a person's life in certain circumstances, preventing their condition from seriously deteriorating, alleviating serious suffering or stopping them behaving in a violent or dangerous manner unless or until the patient loses capacity to consent to ECT.
	I noted what the noble Earl, Lord Howe, said about the interpretation of Section 62 and I will reflect on that. Perhaps he would find it helpful if I wrote to him to clarify the points that he raised.
	Amendment No. 16 would allow for detained patients who lack capacity to consent to ECT to be given ECT, without a second opinion, only where it is immediately necessary to save lives. I am advised that there may be a problem with that in the case of a patient who is taking no sustenance because of their severely depressed state and is at risk of starving as a result. In those circumstances the doctor cannot act to prevent any deterioration in the patient's condition but must wait until the patient is at death's door. On that basis I am advised that there may be circumstances where ECT would be the only appropriate treatment for some patients.
	Amendment No. 14 further provides that no child or young person under 18 may be given ECT if they are capable of consenting to it and do not. If they lack capacity to consent to it then, unless it is immediately necessary to save their life, they may be given ECT only with the approval of a person with parental responsibility or if the High Court decides it should be given. Even where the patient or the parent consents, the treatment must still be approved by a second-opinion appointed doctor (SOAD). Either the SOAD or the doctor in charge of the ECT would have to be a child and adolescent practitioner.
	Before I go on to discuss the issue of parents providing consent to treatment with ECT, I want to note that, by amending Section 56, Amendment No. 15 will make those provisions apply to all patients under 18, regardless of whether they are detained under the Act. Clause 27(2) would otherwise replace the current wording of Section 56 and so leave the current amendment addressing the wrong text. Members of the Committee have signalled their intention to oppose Clause 27. I mention that in case any noble Lords might have been struggling with two different versions of Section 56.
	It is clearly of great importance that, where ECT is used for children and young people, there are sufficient safeguards. I have listened to noble Lords' comments on that. As they have said, ECT is given very rarely to children. When it is used, it is almost always given to older children—those aged 14 or older. Of course the Government understand the concerns expressed about the use of ECT for children, but as the noble Baroness, Lady Murphy, said, there may be a few cases where it can be of real benefit, often life-saving. That was the view of the Royal College of Psychiatrists in evidence to the Joint Committee examining the 2004 draft Bill.
	It is already the case that a child patient who is subject to the Mental Health Act can be treated with ECT in non-urgent circumstances, without a second opinion, only if he is capable of consent and does consent. There is no provision, if the child either cannot or does not consent, for a person with parental responsibility to consent on his behalf. Instead Section 58(3)(b) requires a SOAD to certify that ECT should be given.
	For children who are not detained but are in hospital as informal patients, the Government have thought it right to enable under-18s who are capable of consenting to ECT to do so without the need for a statutory second opinion. That is on the basis of those young adults having the ability to make their own judgment and therefore consent to such treatment. Having a statutory second opinion would mean being interviewed and examined by a second doctor whom they probably do not know.
	Having listened to the arguments put forward by noble Lords, I am very willing to go back and look at the safeguards for children. I cannot give a commitment that I will come forward with a sympathetic response but I would like to take some time to make sure that we have got this right. I have listened to noble Lords in relation to the safeguards. I do not know the extent to which they would also accept that there is an issue about young people who are competent to make their own decisions. I wish to examine that balance, but I will come back with a response on Report.
	Let me turn to the other question regarding consent. We come back to ECT and its value and uses. Many oppose ECT. We are aware that some psychiatrists believe that ECT risks having a long-term or permanent effect on the faculties of patients, but our view is that there is no consensus on that point. We acknowledge that the Royal College of Psychiatrists supports prohibiting the giving of ECT to a patient who can consent but refuses to do so. A number of noble Lords have referred to the NICE guidance in this area, which recommends:
	"Someone who is mentally capable of making a decision about their treatment should decide, after discussion with the doctor, whether or not they want to give their consent to have ECT".
	While some psychiatrists do not treat such patients with ECT, many do. In 2003 and 2004 the Mental Health Act Commission reported 1,385 requests for second opinion appointed doctors to issue certificates approving ECT where the patient refused consent. The noble Lord has already referred to that. We accept that there are aspects of ECT treatment which set it apart from other forms of treatment. That is why the Act already provides the safeguard of a second opinion for detained patients who either cannot or do not consent to it.
	We are concerned that the tenor of the amendments is to treat ECT as if it were barely a legitimate therapeutic treatment at all. That might unduly limit the options not only for clinicians, but also for patients. Some patients welcome ECT, whether because they think of it as a genuine last resort or because they prefer it to medication. These amendments would deny those patients what they would have chosen for themselves just because they happen to lack capacity at the time in question. Given that we are talking about situations of immediate necessity, it is to be expected that very many patients will lack capacity.
	We see a problem of clinicians not being able to respond with ECT to crises, even if patients have made it plain, in some form of advance statement, that ECT is perhaps what they would want should their condition begin to deteriorate markedly. Even in the case of patients who retain capacity to consent, we think that these amendments may well go too far. We are talking about patients who are detained against their will in a framework of legislation which, as the Committee will know, we believe should be based on needs and risks, not on the patient's decision-making ability. We worry that these amendments might sometimes force clinicians to work with one hand tied behind their back at the very moments of crises when they most need to be free to respond with the treatment that their clinical judgment tells them is best.
	These amendments would mean that detained patients could not be given ECT even where it was an immediate necessity, if they have the capacity to consent but do not. They would limit immediately necessary ECT without a second opinion for other detained patients only in life-saving situations. That would impose a significant new restriction on what may be done under the Act to respond to emergencies. That is what makes us cautious. However, I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. In the light of that—

Baroness Murphy: Before the noble Lord finishes, I should like to press him on Section 62 emergency treatment and remind him why it is given. Emergency ECT is given not to affect the underlying cause of the depressive illness or suicidal ideation; indeed, suicidal thoughts often get worse after emergency ECT because you are speeded up by the process. The only circumstance where one is justified in giving emergency ECT—in other words, to give it without a second opinion in a life-threatening illness—is where someone has stopped eating and drinking. Under those circumstances they have nearly always stopped speaking as well. I cannot remember a single occasion under those circumstances where the person would have capacity. It is because of that that I cannot see why we would want to allow Section 62 treatments, which, I regret to say, have occasionally been used to get round having the Section 58 second-opinion doctor turn up. I regret to say that there is some bad practice, which we do not like to talk about very much, but which exists. Section 62 has occasionally been used in a cavalier manner. The Mental Health Alliance and the Royal College of Psychiatrists are very keen to stamp that out because of the bad reputation of ECT. I am a supporter of ECT, but I would no more think of giving it under Section 62 to a person who had full capacity than fly to the moon. I ask the Minister to look again at how we can add this safeguard, which would have no impact at all on those patients for whom the noble Lord, Lord Patel, expresses anxiety.

Lord Hunt of Kings Heath: I am not in an enviable position as a Minister trying to refer to specific treatment cases when such experts are present, and I attempted to resist doing so. Obviously, I am reliant on advice that I am given on certain examples which may concern the Government vis-à-vis amendments tabled, but I do not seek to hide behind that advice. In relation to Section 62, there is no way that I could condone bad practice. I shall do everything that I can to ensure that it does not happen.
	When the noble Baroness intervened, I was going to say in conclusion that I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. I am very willing to look at this further and to listen to further argument. We are certainly willing to consider further the question of allowing patients subject to compulsion to refuse consent to the use of ECT in non-emergency situations.
	As I said, I wish to look again at whether the safeguards for children are sufficient. I will come back to that at a later stage.

Earl Howe: I am grateful to all noble Lords who spoke in this debate. I am particularly grateful for the support that they gave to this group of amendments, conscious as I am of the extent of the professional expertise that exists on the Cross Benches and the very considerable lay knowledge among other speakers. The near-unanimous support for Amendment No. 15 and the part of Amendment No. 14 dealing with children was welcome. Until the Minister's final sentences, I had thought that his reply was rather less than warm, and I was becoming despairing and not a little disappointed. However, it is good of him to say that he will take the issues away and look at them. I could have wished for more than that, but I am grateful for those small mercies.
	I simply ask the Minister if he would be courteous enough to read the speeches of the professional contributors to the debate, as they carry enormous authority, and to bear in mind the fact that ECT is, I think, accepted as a unique form of treatment because of its invasiveness and its recognised adverse effects. The basis of all my amendments could be summarised as simply being the precautionary principle because there is a marked split in professional opinion on the utility and effectiveness of the treatment.
	I remain somewhat puzzled that the Government changed their mind about the right of patients with capacity to refuse ECT. I know that the Minister said that he would look at the issue again, but I had hoped that he would say that, having considered the issue in the context of the 2004 draft Bill, there was really no difficulty about it and that he would readily draft an amendment. So I am puzzled about why the Government are so hesitant. The understanding among practitioners is that a capacity test is perfectly able to deal with the specific circumstances of different treatments, including ECT.
	We have debated the issue for nearly an hour, and it is time to move on. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 15 and 16 not moved.]

Earl Howe: moved Amendment No. 17:
	After Clause 7, insert the following new Clause—
	"ECT compliance with standards
	After section 63 of the 1983 Act insert—
	"63A ECT compliance with standards
	Electroconvulsive therapy (ECT) shall not be administered except in a service that has been accredited for that purpose by the Royal College of Psychiatrists.""

Earl Howe: We come now to an amendment which, I hope, the Government will be sympathetic to. It would ensure that ECT is only delivered in a service that meets acceptable standards.
	I shall remind noble Lords who may not know that ECT involves giving a patient a general anaesthetic and passing electricity through their head. The purpose is to cause a seizure, which is intended to have anti-depressant effects. In order to have that effect, the dose of electricity must be enough to cause a seizure, but it should exceed that threshold by as little as possible if adverse cognitive effects are to be minimised. A systematic review carried out for the Department of Health stated that the more effective forms of ECT tended to cause more memory impairment.
	The potential for harm relates not just to cognitive damage, but to psychological damage as well. ECT, for many people, is frightening and distressing. The fears that people have are unfortunately borne out by the evidence. The noble Lord, Lord Bragg, mentioned the work of Mind, with which I know he is closely involved. A Mind survey, six years ago, of patients' ECT experiences, found a high level of unwanted side effects. Of those who had had ECT in the two years prior to the survey, 40 per cent reported permanent loss of past memories; 36 per cent reported difficulties in concentrating; 27 per cent reported an inability to remember new information; and 49 per cent said that they would not agree to have it again.
	Respondents from black and ethnic minority communities were more likely to have received ECT without consent, and they had a more negative view of it than the overall sample, with 50 per cent finding it unhelpful, damaging, or severely damaging in the short term, and 72 per cent in the long term. It is therefore clear that, if ECT is to be given, it has to be given in line with best practice—not least in the way that information is provided to patients. I did not mention that, in the Mind survey, 34 per cent of respondents said that they were not aware that they could refuse to give consent to the treatment. The information that needs to be promulgated should also be about people's rights.
	Despite the hazards associated with ECT, the Mental Health Act does not prevent it being administered in clinics where conditions are unsafe and staff are inadequately trained or supervised. The ECT Accreditation Service (ECTAS) was set up by the Royal College of Psychiatrists in 2003 to improve quality standards. I understand it to be a thorough and soundly based scheme, but it is only voluntary. At October 2005, 78 clinics had joined it, and that is about 40 per cent of ECT clinics in England, Wales and Ireland.
	I am sure that we should support voluntary engagement in the ECTAS process, but is that enough? I do not think that it is. I really do not think that it is acceptable that people are being given ECT in clinics that have been or would be denied professional accreditation. I say that because the standards involved in accreditation are all to do with safety. The themes that have emerged in the first two years of the scheme's operation among clinics that did not pass first time include lack of proper risk assessments; lack of trained supervision; absence of essential equipment to monitor the patient's breathing during anaesthesia; no monitoring of adverse events; and an absence of operating protocols. In other words, a failure to meet standards necessarily indicates that absolutely essential requirements of safety, effectiveness and acceptability have not been met.
	I do not know—none of us can know—what proportion of clinics that have not yet joined the scheme would fail to get accreditation. According to the royal college, however, the experience to date suggests that, for a clinic that is initially found to be substandard, it is not a difficult or expensive matter to bring its services up to scratch. I very much hope, therefore, that the Government will look most carefully and constructively at the proposal in the amendment. I beg to move.

Baroness Neuberger: I support the noble Earl, Lord Howe, in this amendment. I will not speak long, as we are running behind and the Whips are getting a little anxious.
	There are two brief points that I wish to add to what the noble Earl has said. First, we have had a long discussion already about how ECT is viewed generally by the patient community. It seems to me key that, if we want to give those patients the sense that they are safe—some of them actually ask occasionally for ECT, as the noble Baroness, Lady Murphy, said—this accreditation is absolutely vital. There is not only a patient safety issue, but the issue of the treatment being seen to be safe and patients having trust in places where ECT is carried out.
	The second point is the worrying statistic from the survey of those who are already members of the voluntary scheme that was shown at one of our briefings from the Mental Health Alliance. Because ECT is not a high priority in mental health services, only 28 per cent of those services have a training budget. Where ECT is being carried out and they have already joined a voluntary accreditation scheme, even they are not having regular training. It seems to me, therefore, that we all ought to support a compulsory accreditation scheme under the aegis of the Royal College of Psychiatrists, where training is a key part of how the treatment is carried out. I hope that the Minister will give us some comfort on that.

Baroness Murphy: The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, have said it all. I know that there will be anxiety on the part of the Government about imposing the standards that create best practice, but I know how much mental health trust managers and clinicians would welcome the support for investment in these services. As we have already said, it actually does not take much money; it just means a concentration of effort.
	The Royal College of Psychiatrists has done an enormous amount in the past 25 years to improve knowledge and training for delivering this small, but important, service, where safety must be absolutely paramount. It would do so much to give confidence if we could get everybody signed up. It would be another way to reassure patients that the treatment was taken seriously and that their concerns were being addressed. I urge the Minister to accept the amendment.

Lord Carlile of Berriew: Clauses 178 to 184 of the draft Bill of 2004 contained safeguards in relation to ECT. The committee considered those with care and came to the conclusion that something like the safeguards that were included in the Bill was required. The committee, at paragraph 368 of the report, which I will not read out, made a further recommendation in relation to ECT under the emergency procedure. I have not heard any reasoning why the Government have abandoned the cautious approach set out in the clauses in the previous Bill that I referred to. They seem to me to be entirely appropriate. We reached our conclusions in the committee on an evidence base. When replying, would the Minister explain to the Committee—if it is the Government's view—why it is no longer appropriate to build in the protections in those clauses?

Baroness Finlay of Llandaff: An area that has not yet been mentioned is the danger of anoxia from poor anaesthetic maintenance technique. Training in anaesthetics taught me that these patients can have just as compromised an airway and can go deeply anoxic quite easily, so it is terribly important that they are looked after and have their ECT on premises that meet minimum standards. It is worrying that half of the premises have not yet put in to register, because that suggests that they do not expect to meet the accreditation levels yet. I hope that the Minister, in his reply, will address the position of patients who are treated in private premises rather than NHS premises and how those premises are currently inspected for standards. The amendment would mean that prisoners would have to be moved to a place of safety, yet I cannot think of prison hospital facilities that are adequately equipped to give ECT in the very rare situation that a prisoner might require such treatment.

Baroness Masham of Ilton: This sounds really rather concerning. I ask the noble Earl how many substandard units there are in operation. Perhaps if he cannot answer, the Minister can.

Earl Howe: If I may answer that question a little later on, it may be helpful to the Committee.

Lord Hunt of Kings Heath: It is entirely understandable that noble Lords have raised the question of how services are, essentially, to be regulated, because a statutory scheme would amount to regulation—that is what this is about—where ECT is given to patients who are under compulsion. Clearly, given the concerns about the administration of ECT, it is important that there is a safeguard and that the public and patients can be given assurances that ECT will only be administered in the most appropriate way. I fully understand the comments that have been made. However, we have in the current arrangements an appropriate way of ensuring that services are provided effectively. I agree, however, that, if there is a problem in that some facilities are not applying for the voluntary accreditation scheme, there is an issue about how those organisations can be encouraged to do so.
	Mental health providers, including those providing ECT treatment, are regulated by the Healthcare Commission, which is responsible for regulating the facilities in line with the standards for health service providers set by the Department of Health. That regulation, which has been part of the reforms that the Government have brought to the House over the past seven, eight or nine years, is about ensuring patient confidence as well as ensuring the quality of services. I pay tribute to the Royal College of Psychiatrists, which, in 2003, established the voluntary accreditation scheme to which the noble Earl, Lord Howe, referred, the ECT Accreditation Service. It is open to all clinics and hospitals in the UK and Ireland where ECT is administered. Participating clinics undergo a process of self-review and an external peer review over a period of six to nine months. The results are considered by the ECTAS accreditation advisory committee, which recommends a rating to the college's court of electors. The scheme provides an assessment of the clinic against standards and, through feedback and advice, seeks to help clinics continuously improve while disseminating best practice throughout the sector.
	The Healthcare Commission values the information that comes out of the process, and it often forms part of its screening process for providers that have taken part in the scheme. Much information comes out of the college's other accreditation scheme for acute in-patient mental health services or the reviews undertaken through the quality network for in-patient child and adolescent mental health services that also helps the commission in the process of assessing mental health service providers.
	Noble Lords will also know that the Government recently published a consultation, The future regulation of health and adult social care in England. It seeks to ensure that we have a proportionate system of regulation. In that context, I believe that we have the best of both worlds. We have statutory regulation through the Healthcare Commission and the voluntary accreditation scheme run by the Royal College of Psychiatrists. I would not want to change that balance, because it is the best type of balance. Providers are encouraged as much as possible to do the right thing by bodies that are concerned with the area under consideration, with the Healthcare Commission being responsible in law for the overall regulation of healthcare providers.
	We have a situation in which not all providers of services are voluntarily accredited through the royal college scheme. By its very nature, it is a voluntary scheme; therefore it would not be appropriate for the Government to dictate to individual providers that they should voluntarily subscribe to the scheme. However, I accept that it would be in everyone's interest if all providers took advantage of the accreditation scheme, and I am willing to institute discussions between my officials and the royal college to see what could be done to encourage providers that do not take part in the accreditation scheme to do so.

Lord Carlile of Berriew: Before the Minister sits down, will he please answer my question? Why have the Government withdrawn from what they described in evidence to the Joint Committee as,
	"a tightening of the existing arrangements for the administration of ECT, including the recognition of the need for consent"?
	We have had no explanation of why the Government have abandoned the position that they took in the 2004 draft Bill and taken up the position that they are in today, which is very much non-statutory.

Lord Hunt of Kings Heath: I thought that in the previous group of amendments on ECT we debated the issue of consent. I said to the Committee that I was taking back the issue and would come back on Report with some ideas. This amendment is about the accreditation of services.

Lord Carlile of Berriew: I apologise to the noble Lord. I was absent for part of the previous debate, and I obviously missed that part. I am very grateful.

Earl Howe: I thank noble Lords who have spoken in the debate. I am grateful to the Minister for his reply, which is reasonably positive as far as it goes. He mentioned the work of the Healthcare Commission and its responsibility for regulating clinics. I wonder what work the commission has done in this area. Has it expressed any opinion about quality standards in ECT clinics? Under what standards do clinics operate, if they do not sign up to the accreditation scheme? Those matters ought to be looked at.

Lord Hunt of Kings Heath: Would the noble Earl, Lord Howe, find it helpful if, as well as asking my officials to discuss with the royal college opportunities to encourage more providers to accredit voluntarily, I made sure that the Healthcare Commission was made aware of this debate, so that it could see the importance of the issue?

Earl Howe: That is a helpful undertaking, and I am extremely grateful. I shall withdraw the amendment, of course, but I just wanted to reply to the noble Baroness, Lady Masham. As I said earlier, the most recent figure that I have is that 78 clinics had joined the voluntary accreditation scheme, but that figure is more than a year old. However, I can tell her the approximate rate at which clinics appear to fail the test. Of the first 37 clinics to be accredited, nine initially had their accreditation deferred but were then awarded it once the necessary improvements had been made. From that statistic, one can see that it is by no means a foregone conclusion that a clinic will pass the first time round, which underlines the concerns that I was expressing. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 18:
	After Clause 7, insert the following new Clause—
	"Administration of medicine
	In section 58(1)(b) of the 1983 Act (treatment requiring consent or a second opinion) for "three months" substitute "28 days"."

Earl Howe: Amendment No. 18 takes us once again into serious and important territory. It relates to what is known as the three-month rule. The 1983 Act entitles the medical practitioner to treat a patient with medication for his or her mental disorder without the person's consent—indeed, in the face of his outright opposition—for a period of three months. Before the end of this period, Section 58 of the Act requires that a second medical opinion must be sought from a doctor appointed under Part IV before treatment can continue. A second opinion is required under two sets of circumstances: either when the patient does not consent, assuming he has capacity; or where the patient lacks capacity and the responsible clinician considers that the treatment should be given. What this amounts to in the Act is an exceptional power to override the choice of those patients who retain the capacity to make their own choices. In no other medical context would such a power be countenanced. Theoretically, the responsible clinician should seek the consent of the patient and listen to his or her views, but all too often this does not happen.
	The Mental Health Act Commission has reported as follows:
	"Too many patients feel that they are excluded from decision making and the exercise of choice in their hospital treatment, and unable to discuss their subjective experiences of therapeutic effect or adverse side effects. This is likely to exacerbate the likelihood of non-compliance after discharge and may contribute to the problems of 'revolving door' readmissions".
	That is from the commission's biennial report for 2003-05.
	In fact, the commission finds when it visits hospitals that the issue of medical treatment is a key one for patients. It is an area in which complaints are frequently made. Patients are reported as being dissatisfied with the side effects of their medication and with the medication that has been prescribed without their own preferences being taken into account. Let me remind the Committee of some of the side effects that these powerful and potentially toxic chemicals have on those who take them: serious weight gain, leading to obesity; diabetes; impotence; disabling and embarrassing movement disorders; lethargy; and feeling drugged up all the time. Those are just a few examples out of a very long and pretty unpleasant list.
	Quite apart from the bad side effects, a patient's diagnosis is hardly ever straightforward. It can change several times over the period of detention. Medication not uncommonly needs to be changed. Dosages need to be changed. The whole business of prescribing the right drug in the right amount is very difficult. I would argue that these are factors that militate strongly in favour of careful and prompt oversight of any medication given in these circumstances. Three months of being treated without consent or with a lack of capacity to consent to treatments, which may be causing harm, is simply too long. There is a power in the 1983 Act for the Secretary of State to reduce the period by order. However, this has not happened. Under the 2004 draft Bill, there would have been tribunal authorisation of compulsory treatment by 28 days. In keeping with that, I am proposing through this amendment that the period should be reduced to 28 days.
	Once again, I feel that I should quote the views of the Mental Health Act Commission, from its 11th biennial report:
	"We believe that the current Act provides insufficient protection to patients in the first three months of their treatment under detention, when they may be forcibly given medication in doses or combinations without the oversight of a Second Opinion Appointed Doctor. Some RMOs appear to share our unease: we receive (but have to decline) occasional requests for statutory Second Opinions in relation to such patients".
	Let us seize the initiative and take the opportunity now to give patients an extra safeguard. It is one that I believe will have enormous impact on their health and well-being, without, as far as I can see, necessitating any cost implications. I hope that the Minister will share my view that it is time for the change to be made. I beg to move.

Baroness Neuberger: I support everything that the noble Earl, Lord Howe, said and simply add one other piece of evidence from the many we had in support of this amendment. The National Patient Safety Agency's report, Building a Memory, records some instances where the drugs have seemed somewhat eccentric. We will be talking about that issue later on, but the report particularly suggests as the sort of things where people felt uncomfortable with the drugs that they were given such examples as psychotropic drugs prescribed above the normal amount in the formulary and the use of anti-epileptic drugs as mood stabilisers. The quotation that we got about being drugged up all the time is going to resonate in our ears for a long time.
	Reducing the period from three months to 28 days is not a major thing for the Government to do. It would make a huge difference to how patients feel in terms of safety. They would be more likely to seek treatment if they did not feel that, compulsorily, they might be given for three months treatment that they actively dislike and that makes them feel very unpleasant. I hope that the Minister will see reason in this amendment and in those grouped with it, and perhaps see whether he can do something.

Lord Patel of Bradford: I rise to speak to Amendment No. 18. I have great sympathy with the purpose of this amendment and great interest as chairman of the Mental Health Act Commission, which was mentioned by the noble Earl, Lord Howe.
	It will be useful to go back a bit. The justification for the current three-month period, during which treatment with psychiatric medication can be imposed upon a detained patient regardless of consent, derives from the words of the Minister during the 1982 Standing Committee debates on the Mental Health Bill, as it was then. Practitioners in the field today who seek advice on or interpretation of the statute will find the words of that justification preserved in the Mental Health Act Manual:
	"The three months gives time for the psychiatrist to consider a treatment programme which suits the patient. Three months seems to fit best with both clinical experience and clinical practice. It is long enough to allow a proper valuation and assessment of what, if any, long-term treatment may be needed. It is also short enough to ensure that a patient's consent, or a second opinion, is obtained before a long-term course of drug treatment gets too far ahead".
	Noble Lords may think that that is fair enough. But I have to ask, a quarter of a century later, are we still content that three months must pass before a patient who is being treated with medication has a right either to give their consent or to withhold it? Should it be three months before a patient is afforded the safeguard of a second opinion, when he or she is being forced to take such medication? I think not. I, for one, am certainly not content. Everything that I believe tells me that three months is too long to withhold a patient's rights. I suspect that that is also the feeling of this Chamber. In the 25 years since the argument was made, the general recognition of and sensitivity towards human rights in the healthcare context has come a long way. I add my support to the amendment. However, I am not ignorant of its possible consequences and I hope that the Minister will forgive me for anticipating his response to the amendment, as I suspect that his greatest concern will be with its resource impact. It is certainly the case that reducing the period before which patients are entitled to a second opinion will cause a rise in the numbers of second opinions. As the chairman of the body responsible for administering those second opinions, this gives me slight pause—but it is only slight.
	In any case, the number of second opinions has significantly increased over the lifetime of the Act by some 250 per cent. The Mental Health Act Commission's last biennial report speculated on the possible reasons for that rise, one of which was a growing appreciation and care by clinicians to consider whether apparent consent from a patient was genuine, rather than being based on inadequate understanding, capacity or freedom of choice.
	So far, the administrative burden of the safeguards provided by the 1983 Act has already increased dramatically over the lifetime of that Act. The Mental Health Act Commission has managed that burden and the Department of Health has, in the main, funded it. I urge the Minister to be cautious in rejecting this amendment on the grounds that its costs are uncertain. We should welcome the extension of an existing safeguard over a wider population of those who are treated without consent and be prepared to meet the costs that safeguards may entail.

Lord Bragg: I support Amendments Nos. 18 and 19, tabled by the noble Earl. We now know that medicines used to treat mental disorder can have extremely serious adverse effects and are not always effective. Comments made to MIND include:
	"I was given haloperidol. It made my limbs stiff. It gave me anxiety. I was suicidal".
	Another stated:
	"I want the Government to realise that depixol and other antipsychotic drugs can cause apathy ... It was as if my soul had died".
	The severe side effects mentioned by the noble Earl, Lord Howe, can be added to. It is a long list.
	People often know what has previously helped or harmed them and know how they are currently affected by what they are taking. They are often self-experts in this area. People may be willing to try different approaches from those being considered. These days, three months is far too long for trial treatment before requiring consent or a second opinion, as has been pointed out. Up to a point, I agree with the noble Earl, Lord Howe, that the period should be reduced to 28 days; I would like to see it reduced further. The law should redress the imbalance that is by necessity involved in compulsion, by requiring clinicians to have regard to patients' wishes. That would also help clinicians to find the best treatment for the people concerned. I hope that my noble friend the Minister will take the amendments on board.

Baroness Chalker of Wallasey: I support the amendment tabled by my noble friend Lord Howe. The Minister will remember from our debates some years ago a tragic case to which I referred him. It related to the very fact that one could not review within three months the drugs prescribed in a case. It caused a great deal of pain and suffering, not only to the patient, but to the patient's family who were watching, because they were totally disempowered from altering the situation.
	We have moved a long way since I was in the DHSS, back in the early 1980s, when the current Act was formulated, and then passed, just after I left the department; but it would be sensible, in terms of the drugs bill and the needs of the patient and their family, to carry out a review long before three months. I support the 28-day period that my noble friend has proposed and I hope that the Minister will look at that extremely carefully, even if he cannot agree tonight, because there is a wide gap between today's situation and the one that we faced way back in the early 1980s.

Baroness Meacher: I had not planned to speak to this amendment but wish to make one point. I was involved in the development of the 1983 Act during its passage through Parliament. At that time, we assumed that people would spend the period that we are talking about in hospital while under treatment. Now it is important to consider the interconnection between the different clauses of this Bill. We are now talking about people being given community treatment orders; certainly in my trust in east London, many people may remain in hospital for quite a brief period.
	I ask the Minister to consider what it would feel like to be a patient who had been given a cluster of treatments that have these very unpleasant side effects and then be placed on a community treatment order, possibly by someone who is not even a doctor, left on the treatments without access to a second opinion, and without the day-by-day access to doctors whereby one could say, "Look, doctor, I feel dreadful; all sorts of horrible things are happening to me". At least you are under surveillance in hospital. That would not be the case if you were in the community. I ask the Minister carefully to consider the implications of that if community treatment orders are brought in.

Lord Hunt of Kings Heath: Of course I will give careful consideration to the debate. The noble Earl, Lord Howe, said that patients were not sufficiently involved in decision-making and raised issues relating to the side effects of drugs on patients and the lack of explanation. I agree that those are matters of concern. They are covered in the draft code of practice and in the principles that we have debated, which are set out in Chapter 1—the participation principle and the communication principle. I accept that noble Lords have made relevant comments about the safeguards needed in these situations.
	The Government think that the three-month period is, and remains, appropriate. Although the argument given in 1982 was similar to the view that I shall express tonight, it is no less valid. Indeed, the elements of the 1983 Act on which we are building this new legislation testify to the robustness of many of the provisions contained in that Act. The three-month period is considered appropriate because of the time that it allows for an optimum regime of medication to be identified—or, at least, for certain options to be ruled out before a certificate is needed. Different medications need to be tried before the most suitable one is identified.
	There are practical issues involved. It would surely be unnecessary and ineffective to require certification for ongoing treatment before the period needed to determine that that treatment was the best option had elapsed. For instance, some medication, such as anti-depressants, can take as long as four weeks before it begins to take effect. The amendment would require SOADs to consider approving the continuation of a treatment whose benefits to that individual patient had not yet been demonstrated. The doctor may, soon after the SOAD visit, identify that a different treatment is required for that patient, and so the process would begin again. Several certificates might be needed in succession, each one requiring the patient to be examined by a SOAD, particularly if the patient cannot or does not consent. While a second opinion is clearly a valuable safeguard, some patients might find it intrusive or upsetting, especially if it happens more than is necessary.
	The Government are not persuaded that the limit should be reduced from three months to 28 days as suggested in the amendment. It is worth making the point that, as the noble Earl, Lord Howe, suggested, the legislation would allow that period to be so reduced. It is not so much a matter of the legislation as of the actual practice.
	I will also comment on costs. The noble Lord was very tempting when he said that, because the workload has increased over the years—in essence, since the original Act—we should just accept, I guess, a continued increase in workload as a normal organic development. I understand that. But in considering this further, surely the noble Lord has to consider the implications for service providers. Our initial analysis shows that it would increase the number of certificates required every year by more than 6,000, adding on to a baseline of 11,000 a year. We think that about 20,000 extra hours of psychiatric time would be required in a year. We are not convinced either that that would be the right use of resources or that the case has been made for 28 days. On that basis, I hope that this amendment will not be pursued.

Baroness Barker: Will the noble Lord share with the Committee the basis on which that calculation was made? Perhaps he could write to us. My reason for asking that is that the joint scrutiny committee had enormous difficulty in accepting some of the department's estimates, some of which simply did not stand up to scrutiny. I am not suggesting that that is the case here but it would be helpful to know the basis for the calculation.

Lord Hunt of Kings Heath: In fairness, these are estimates, and detailed work would need to be done in relation to the amendment. Can I accept the challenge to write to the noble Baroness and other noble Lords with the information I have that backs up the figure I mentioned?

Earl Howe: I am immensely grateful for the authoritative support of the noble Lord, Lord Patel of Bradford, and the support of the noble Lord, Lord Bragg, my noble friend Lady Chalker, and the noble Baronesses, Lady Meacher, Lady Neuberger and Lady Barker.
	In my naivety, I had thought, along with the noble Baroness, Lady Neuberger, that this was not a major thing for the Government to concede. It appears all of a sudden that it is a major thing, despite the fact that in the 2004 draft Bill we had a proposal not so very different from it. Time and again, Ministers are giving us answers that are diametrically opposite to the position that is implicit, or indeed explicit, in the 2004 draft Bill. I am at a loss to know why. I really had hoped to be pushing at an open door with the amendment. It might have been a coincidence that we heard from the Minister about the cost implications in some detail. My suspicions are raised yet again that perhaps, in part, that lies behind the Government's resistance to a number of our amendments.

Lord Hunt of Kings Heath: It would be unfair to say that some of the changes we are making as a result of this Bill are a cost-reduction exercise. For instance, in the earlier debate that my noble friend responded to, we talked about the role of clinicians. It was suggested that decisions about developing and extending the role of health professionals were made on cost grounds. I would refute that. We are seeking to make the best use of the many talented professionals we have. I think that it is reasonable for the Government to say, when amendments are put forward, that there may be a cost implication; it may be an opportunity cost in terms of professionals' time. It is fair to put that as an issue to noble Lords arguing to reduce the limit from three months to 28 days.

Earl Howe: Of course I accept the point put in that way. The noble Lord, Lord Patel, was surely right: clinical opinion, like science and technology, has moved on since 1983. I believe that we need to take account of that.
	This issue is a matter of legislation because over 20 years the three-month limit has remained unchanged, despite the power in the 1983 Act given to Ministers to reduce the period. Nevertheless, we have gone as far as we can with this issue this evening. With thanks once again to noble Lords who have participated in the debate, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 19:
	After Clause 7, insert the following new Clause—
	"Other treatment safeguards
	(1) The 1983 Act is amended as follows.
	(2) After subsection (4) of section 58 (treatment requiring consent or a second opinion) insert—
	"(4B) When deciding what treatment to give, the responsible clinician shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient's medical record, and if that treatment is not given shall record the reasons for this.
	(4C) In certifying that a treatment should be given under section 58(3)(b), 58(3)(c) or 63A, the registered medical practitioner concerned shall give reasons in writing for his opinion explaining how the treatment represents, for the patient in question, a favourable balance of therapeutic benefit over harm.
	(4D) The reasons given under subsection (4C) shall be communicated to the patient, except where this is likely to cause serious harm to the physical or mental health of the patient or of any other person."
	(3) In section 63 (treatment not requiring consent), at the end, insert—
	"(2) When deciding what treatment to give, the responsible clinician shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient's medical record, and if that treatment is not given shall record the reasons for this.""

Earl Howe: As we proceed through these debates there is one fundamentally important truth that we should never lose sight of: the particularly special vulnerability of mental health patients. It could be argued that all patients, no matter what their illness, are vulnerable to some degree, but those in need of treatment for mental illness are in a class apart. Emotionally they are often debilitated, they frequently find it hard to express themselves coherently and they can easily feel intimidated. Often I hear it said that patients who suffer from a mental condition have a feeling of worthlessness, as a result of which they are not inclined to assert themselves or to stand up for their own interests when otherwise they might have done so. All too frequently they are subject to the kind of paternalistic assumptions that elsewhere in medicine are thankfully becoming rarer; in particular the assumption that respecting autonomy is not all that relevant when that patient's mind is disturbed. The wrongness of that assumption needs to be stated and repeated. Most people, even when mentally ill, and frequently when very ill, are perfectly capable of rational thought and are therefore perfectly capable of making up their own mind about things. In practice, though, that is not how many mental health patients are treated.
	It is against that background that I invite the Committee to consider the amendment. In it and, incidentally, in the one that follows, we confront head-on the twin principles of patient autonomy and transparency of decision-making, and the need to maximise both as far as practically possible.
	Psychiatric medication can have very serious side effects. These can include painful muscle spasms, involuntary movements, loss of energy, weight gain and all the things that we talked about earlier. There is surely no other field of medicine where such adverse effects of routine treatment would be tolerated, but it is surprising how often clinicians are prepared to take them for granted when treating patients with mental illness.
	The joint scrutiny committee, taking evidence on the issue, heard witnesses talk about patients being browbeaten into taking medication, regardless of their wishes, or simply having their express wishes ignored. Yet it is often the patient who knows which treatment works best for him and which ones do not work or are positively harmful. It might be thought that a duty on the part of the clinician to have regard to the wishes of the patient is the kind of thing that would sit better in the code of practice than in the Bill. I disagree. The code of practice has an important part to play in how the Act is implemented, but the particular vulnerability of mental health patients and the gravity of administering treatment under compulsion mean that we need to go further.
	Putting in the Bill a duty for clinicians to have regard to the wishes of the patient would achieve three things: it would improve patient autonomy and the patient's feeling of being involved in his own treatment; it would increase the chance of a patient agreeing to treatment, thus avoiding compulsion altogether; and it would improve the safety and effectiveness of treatment because the patient will often know what has previously helped or harmed him. A doctor may have a very clear idea of what is therapeutically beneficial and feasible for an individual; however not only is it right that he should take the patient along with him if he can, but the chances of the treatment proving effective are instantly much greater if he does so. If, on top of that, the clinician is required to record the treatment requested by the patient—and, if necessary, the reasons why that treatment cannot be provided—there is automatically much better accountability for the treatment decision and a better basis for assessing what kind of care a patient needs.
	I want to continue that train of thought in the next part of the amendment. It proposes that second-opinion appointed doctors must explain in writing why they have authorised a particular treatment and provide those reasons to the patient. The amendment is carefully worded to reflect recent case law. Case law has established two things in the past five years. First, the second-opinion doctor must reach his or her own independent views on the proposed treatment. Secondly, the doctor concerned owes a duty in writing regarding his opinion when a decision is taken that sanctions the violation of a mentally competent adult patient's autonomy.
	The Mental Health Act Commission has published guidance which advises that reasons should be given for all decisions. That, too, is reflected in the amendment. We are talking about not only an evidence-based approach but one that is transparent. The benefit to the patient is in giving a basis for questioning the proposed treatment or for being reassured about it. That serves to instil confidence in the second-opinion system. This amendment is not only desirable but necessary. I hope that the Minister will consider it favourably. I beg to move.

Lord Carlile of Berriew: I wish to speak briefly in support of this amendment. The noble Earl is absolutely right when he speaks of the evidence that came to the Joint Committee. Indeed, a recurrent theme in the work of the Joint Committee, and the evidence and written representations we heard, was that patients should have the maximum autonomy possible when their mental condition is being treated. Since we published our report, and since the Government's response, I—and no doubt others on the committee—have received a steady stream of correspondence from patients and ex-patients. The recurrent theme to emerge from that correspondence is that they do not understand why they were given certain forms of treatment. Nobody explained to them why they were given certain forms of treatment. They may be right or they may be wrong; some of those people, no doubt, will be writing in a misleading way, making misleading statements, or may have misunderstood why they were given certain forms of treatment, but that rather begs the question. The important point is that it should be possible to establish why that patient was given a certain form of treatment.
	In an earlier part of my career as a practising barrister, I took on a number of clinical negligence cases. From time to time psychiatry negligence cases arose. They are extremely difficult on both sides. They are very difficult to prepare for the claimant because it is in the nature of the case for evidence to be hard to come by. They are very difficult for the clinician because any clinician faced with a claim for professional negligence finds it, naturally, very difficult to deal with—as do all of us in the professions.
	This amendment requires a very simple change to the way notes are taken, by writing down the reasons why a decision that may have permanent effects on a person's chemistry has been taken. We hope that the Government will see it as appropriate to include this enhancement of autonomy and understanding within the text of the legislation.

Baroness Murphy: I rise to support this amendment. In particular, I want to speak about the second-opinion appointed doctor role. There was, no doubt, quite a lot of resentment from psychiatrists back in 1983, on hearing that their opinions would be questioned by other psychiatrists imposed upon them at a certain point in a person's treatment. This led, at first, to the second-opinion doctor being a rubber-stamping exercise. People would come in, without always arriving when you were on the ward or with your patient, and left their opinion after a brief consultation merely by giving a certificate. They did not have to express a view at all.
	As we have heard, case law has established that this is no longer acceptable. The Mental Health Act Commission has pressed for years—since the 1983 Act—for this to be a proper second opinion. It has become recognised that this is now much more like a realistic second opinion. We owe it to patients to make this a system of realistic second opinion. It is surprising how many times patients have said that they did not know that it was a second-opinion doctor who had come to give an opinion, so I want to add my support to this particular part of the amendment.
	The other part, about taking account of patients' wishes, seems to me very closely related to an amendment that we will soon reach—Amendment No. 21, I think—on advance directives. That is a lesser but equally important element of taking account of what patients say. All we are asking doctors to do is what they would do anyway if they were practising properly: to listen to patients and write down their express wishes. That, coupled with the second opinion being a proper opinion, written down properly so that it can be discussed with the patient, seems to me absolutely fair and reasonable. I cannot think how that would add to the expense of the services. It would go a small way to give patients a reasonable second-opinion service.

Lord Patel of Bradford: I should like to make a brief contribution about Amendment No. 19. In part, the amendment is intended to preserve in statute such requirements of good practice and lawful decision-making as have been developed through a string of court judgments relating to the operation of Part IV of the 1983 Act through its lifetime and to date. It seems to me eminently sensible to do so, so that statute law reflects and protects those basic requirements. I therefore support the amendment wholeheartedly.
	This is just a small point, but I note that the wording requires a doctor authorising treatment as the patient's responsible medical officer, or as a second-opinion appointed doctor, to explain,
	"how the treatment represents a favourable balance of therapeutic benefit over harm".
	The Government have been implacable in their opposition to the concept of therapeutic benefit as a criterion for detention under the powers in the legislation. I think that the Minister knows that this debate has not come to an end. I hope that the Government will not, in the end, continue to oppose the concept of therapeutic benefit, especially in the context of the imposition of medical treatment, where it is surely a most appropriate measure. In any case, I hope that the Minister will take the spirit of the amendment and come back with wording that the Government are prepared to accept.

Baroness Masham of Ilton: It is about time that the Minister accepted an amendment. This seems a good practice amendment, so I look forward to his reply.

Lord Hunt of Kings Heath: I am sorry that I shall disappoint the noble Baroness. I thought that today the Government have shown themselves prepared to listen. We have agreed to take back a number of issues in the spirit of co-operation to explore ideas that I referred to when I first spoke to your Lordships only a week ago—although it seems much longer.
	I could not disagree at all with the point made by the noble Baroness about good practice and the comments that have been made here today about communication with the patient and discussion of treatment and medication. Those are the essence of good practice. Good patient care involves understanding the needs and wishes of the patient. We want to ensure that patients' wishes are fully taken into account, including those expressed in advance. That is the whole purpose of the statutory code. It is there to embrace within it the practice that we want instituted, implemented and developed in the health service.
	The question is: what is the best way to ensure that there is a proper communication of patients' wishes and views? We believe very strongly that it is in the code of practice. It is through the code of practice that we will achieve improved communication with patients and all the other things that the Committee holds dear. That is not an issue just for patients detained under the Mental Health Act, or for mental health services. That is an aspect of good practice in all clinical care—not just through the code of practice. There is also the impact of the National Service Framework, the NICE guidelines and the many programmes that operate through the care services improvement partnership.
	Although I agree that records should reflect discussion with patients, there must be scope for some best practice in how that would operate. For instance, in the case of a patient who might repeatedly request a given treatment, even after extensive discussion, would it be right that that would be recorded time, time and time again? Surely, there is a risk that that is too bureaucratic and potentially open to challenge. That is why there must be some room for discretion and why the good practice approach is the best approach to take.
	There are two aspects to the substance of the part of the amendment concerning the requirement for second-opinion appointed doctors to record their reasoning or to change the test that they must apply. Members of the Committee have already referred to the fact that it is already well established by case law that SOADs owe a duty to give their reasons to patients. When that patient has capacity and does not consent to treatment, we would expect them to do so in all cases. Good clinical practice would mean that such reasons would be recorded in the patient's notes and we do not see the need for statutory provision to that effect.
	If, however, the amendment is really about a further test that the SOAD must apply—the noble Lord, Lord Patel, referred to that—we do not see the need for the extra test. In a sense, that takes us back to the issue of treatability, appropriate treatment and the therapeutic benefit test. I do not fully understand what is meant by,
	"a favourable balance of therapeutic benefit over harm".
	Whatever the noble Earl takes it to mean, we believe that it must be subsumed within the test of appropriateness in Clause 6. The amendment focuses on one aspect of a decision, rather than taking a holistic approach, as we have tried to do when drafting the Bill.
	In conclusion, I have no doubt about the importance of the second opinion doctor, nor of the need for effective communication with the patient and the practitioner but, in the end, we think that that is best governed by the code of practice.

Earl Howe: The Minister has resisted the amendment and believes that the good practice approach is appropriate. That is not an unexpected reply, although I find it disappointing. He is right to say that listening to patients is automatic in other branches of medicine. Writing down their wishes is equally basic. The fact is that in the field of mental health, where patients are uniquely vulnerable and unable to stand up for their own interests, all too often it does not happen. That was the concern that underlay my earlier remarks. He is also right to say that the phrase "therapeutic benefit" lurks in the foliage of the amendment. I did not expect it to escape his notice. Clearly, that presents the Government with some difficulty. I shall need to go away to reflect on the persuasiveness of the Minister's reply. I understand why he takes the view that he does. I shall have to decide whether I am convinced by his arguments. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Royall of Blaisdon: This may be an appropriate moment to move that the House be resumed for the Question for Short Debate. In moving the Motion, I suggest that Committee begin again not before 8.30 pm. I also point out that the limit for Back-Bench contributions in the debate has now risen from six to seven minutes, following a reduction in the number of speakers.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

International Polar Year 2007-08

Viscount Montgomery of Alamein: rose to ask Her Majesty's Government what benefits are expected from the International Polar Year 2007—08 following the British hosting of the Antarctic Treaty consultative meeting in Edinburgh in June.
	My Lords, we turn now to a rather less controversial subject. It is an enormous pleasure to return to a subject in which I have long been interested. Rather suprisingly, last time the Antarctic was discussed at all in this House was 13 years ago, when in 1994 I saw the Antarctic Bill on to the statute book. This was an important measure because it enabled the UK to implement the treaty obligation imposed by the 1991 Environmental Protocol to the original Antarctic Treaty, and to ratify that protocol.
	The Bill was originally introduced in the House of Commons by the noble Lord, Lord Jopling, who was at that time in the other place. It is gratifying to see that he is now here. He piloted the Bill successfully there, and to have him participate again tonight is a great pleasure. The other person who participated that time was the noble and learned Lord, Lord Archer of Sandwell, who was vital in dealing with some complex issues raised at that time. I am glad that they are both speaking again. Unfortunately the noble Baroness, Lady Hooper, is not able to speak this evening. Though I see her in her place temporarily, I know she has another important engagement in a few minutes' time. It is good to see her here and I am sorry she cannot speak.
	Regrettably, I have no right of reply so would like to thank the other speakers new to the cause who have joined this debate. I welcome them aboard and hope that we have another debate on this subject in less than another 13 years. I doubt if I shall be here then, or even alive—but that is another story.
	Since all that time ago, the Antarctic—indeed the polar regions both north and south—have become increasingly important both to science and above all to climatology. Antarctica covers approximately one-10th of the Earth's surface, a continent which doubles in size in winter and has over 75 per cent of the world's fresh water supply. All this could be vulnerable to global warming with a consequent rise in mean sea level and all that would imply for the whole world. We must always remember that the treaty defines Antarctica as a "continent for peace and science". We need to take the subject seriously, never more than at present.
	This is why, among other things, the fact that the UK hosted the 29th Antarctic Treaty Consultative Meeting in Edinburgh last year was so important. The deliberations were initiated by the noble Lord, Lord Triesman, and I am glad that he is here and will be able to wind up the debate. The Polar Regions Unit in the Foreign Office is important, and I pay tribute to Dr Mike Richardson, who has just retired after many years' service there, and who was in office at the time of the 1994 Act. He did sterling work, and it is important that that unit is in no way diminished and not subject to the swathe of cuts which the Foreign Office has been subjected to in recent years. The unit should be expanded not contracted—it is vital.
	The meeting was also important as an opportunity to launch the International Polar Year 2007-08, which starts in March. This will be the most significant commitment to polar science since the International Geophysical Year 1957-58, but 50 years on. We are at a crucial stage and in a crucial time. This year will herald an internationally co-ordinated campaign of research to initiate a new era of polar science, particularly in building a comprehensive set of measurements concerned with the changing planetary processes—that is, amongst other matters which sound complicated, climate change.
	Britain has played a leading role in Antarctica since the early days, and it is vital that this continues. It would be impossible to discuss Antarctica without mentioning the excellent work over many years of the British Antarctic Survey in Cambridge. Unfortunately we do not have a coherent policy for the Arctic, which is much closer to us and under the same sort of threat. During the International Polar Year, the British Antarctic Survey should be encouraged to extend its coverage to include the Arctic; that is, to produce a bipolar approach. To do this double work it will need additional resources, but a bipolar approach to the two global poles would be a much more coherent policy in the present time of global warming.
	Another important development is tourism, which has tripled since 1994. There is now a danger that, with larger and larger ships visiting—as is being planned for the next Antarctic summer—things could go wrong. There is a risk of accidents in these uncertain and frequently uncharted waters. This brings me to the subject of the most valuable support vessel, "Endurance". There are rumours that she may be mothballed with other defence cuts. It is clear to one and all that "Endurance" is completely irrelevant to defence activities, but she provides a presence which is important in the light of competing territorial claims by Argentina and Chile. More importantly, she is needed to work with the British Antarctic Survey vessels, particularly in case of a disaster when her search and rescue role would be vital.
	I hope the Minister can give the House some reassurance and good news on these several points. It is vital they are considered seriously in the next few years.

Lord Archer of Sandwell: My Lords, I hope the noble Viscount, Lord Montgomery, will accept my congratulations, both on having secured this debate and on his admirably clear presentation—and not simply because that is conventional on these occasions. His deep concern for the polar environment has been known to us for many years and, as he reminded us, we owe to him and to the noble Lord, Lord Jopling—as he then was not—the Act which enabled this country to ratify the Madrid Convention. Without our ratification, it would not have entered into force.
	The Antarctic embodies three concepts which are central to our generation. First is what is being called the "global commons". Our early ancestors took possession of such limited portions of the world's surface as they needed for subsistence, just as various species in the animal kingdom fight to protect the limited territory on which their survival depends. Nation states practice no such moderation. They gobble every inch of territory available. Like the enclosure movement in the 18th century, when greedy landlords enclosed more and more of the commons until there was hardly a common left, that is now the pattern of territorial acquisition.
	In the 1950s, at the General Assembly of the United Nations, Ambassador Pardo of Malta drew attention to what he called "the common heritage of mankind". I think he was the first to use that expression. He said that there was little territory left which was not enclosed within national boundaries, but that what was left should be cherished as our common heritage. He named three examples, probably the only ones left: the deep oceans outside the ever-widening territorial margins; outer space; and the polar regions.
	By the late 1960s, we were threatened with a Klondike in the Antarctic; one national Government after another claimed territory. The United Nations, which was then addressing the various dangers threatening the oceans, was less vigilant in protecting the polar regions, and the protection of the Antarctic was left to the 12 states most concerned, which concluded a multilateral treaty—the 1959 Antarctic Treaty. The original parties, and those who were later accorded consultative status, were therefore bound in international law by their treaty obligations, while states that have not undertaken the obligations are not. Perhaps surprisingly, the treaty regime appears to be in good health. There are now plans for a permanent secretariat, which is essential to any multilateral treaty that seeks to apply a regime. When my noble friend on the Front Bench replies, I hope he can assure us that it is guaranteed adequate funding.
	It seems that the parties to the treaty now represent more than 80 per cent of the world's population, but since the treaty could not lay down a globally binding regime, territorial claims are not renounced but only suspended pending wider consideration. They remain suspended, so it is really an interim measure. The treaty was later supplemented by the Convention for the Conservation of Antarctic Seals and the Convention for the Conservation of Antarctic Marine Living Resources.
	The second concept is environmental protection. We may recognise the importance of preserving parts of the globe as our common heritage, but that does not entail a common right to pollute and destroy them. There is now an assault on our family fortune. Human activity far away from the Antarctic is leading to major damage to the ice cap. This is not a matter for a regime simply protecting one continent, but there are activities in the Antarctic itself that can damage or destroy it. The Madrid Protocol—the 1991 protocol on environmental protection, which we owe to the noble Viscount—is in force, but the much more robust Convention on the Regulation of Antarctic Mineral Resource Activities of 1988, which would establish a commission, a secretariat and an arbitration tribunal, is still not in force, and perhaps when the Minister replies he will venture to prophesy its prospects. I hope that the United Kingdom, with its commendable record in these matters, will be in the lead.
	The third concept, which deserves a passing thought, is less tangible. The wilderness is now something that we read about in history books. Very little wilderness is left in the world, and if its last traces are lost, posterity will be deprived of something irreplaceable. It is not a scientific concept—indeed, it borders on the mystical—but there are two kinds of people; those who understand that and those who think it is amusing.
	The idea of an International Polar Year, which of course goes back to 1882, is a welcome international project for the mutual sharing and co-ordination of research. As a bonus, it helps to capture the intention of the international community and civil society towards the dangers to the polar regions. However, it comes with a price. Tourism is becoming a profitable industry. Tour operators are organising tours in the Antarctic. Tourism is not necessarily a bad thing if it introduces people to the magic of the wilderness, but it calls for regulation. Time precludes a sermon on that subject, but in the very act of calling attention to Antarctica, we could be in danger of destroying it. Our common heritage is as important as our national heritage. I would like my grandchildren to share it.

The Earl of Selborne: My Lords, I, too, thank the noble Viscount, Lord Montgomery, for giving us this opportunity to consider matters polar. I also pay tribute to his persistent interest over 13 years. Unlike some of the other speakers in the debate, I am not nearly as well qualified as the noble and learned Lord, Lord Archer, or my noble friend Lord Jopling, whose credentials have already been explained.
	The only claim that I can make—it is a pretty tenuous one—is that when Scott sailed south on the "Discovery" expedition through the Ross Sea, he named a cape Cape Selborne after the then First Lord of the Admiralty, who had helped to get what was a naval expedition, and indeed a scientific expedition, up and running. From time to time, I check at the Royal Geographical Society map room to make sure that no one has changed the name, and I am delighted to say that it is still called Cape Selborne.
	This Question refers to the Foreign and Commonwealth Office's organisation of the consultative meeting in Edinburgh in June, and I pay tribute to what was clearly a very successful meeting, one of several that are helping to prepare us for not one year of an International Polar Year but two years, because it goes on until 2009.
	International scientific polar years have been organised on three previous occasions, in the 1880s and the 1930s. In 1957 and 1958, too, there was the highly important International Geophysical Year. If ever one needed an explanation or credibility for organising scientific and explorative programmes on a large international scale, one should consider the success of the 1957-58 programme. That changed our perception of the world. The long disputed theory of continental drift was finally confirmed. Satellites were first launched then—indeed, they discovered the Van Allen radiation belt—and much of the research that was started in 1957-58 continued for many years to come, and still continues. Again, I remind your Lordships that one long-term programme undertaken by the British Antarctic Survey from 1957 onwards led in 1985 to the critical ozone-depletion paper, from which came the Montreal Protocol and much else besides.
	The lesson of that is that one- or two-year programmes are highly important in engendering a sense of urgency and focus, but long-term monitoring and the back-up thereafter, such as the sometimes extremely routine number crunching, can be critical. If ever there was a justification for all this, it is that ozone-depletion paper, for which the British Antarctic Survey deserves the credit and from which the international community was able to draw the right conclusions. I do hope that, in the fourth International Polar Year, we remember the importance of basic data collection and the following long-term funding that will be required to consolidate what will certainly be a successful year or two.
	Polar research is expensive. It requires ships and aircraft—fixed costs that must be met whatever the budget. When budgets are cut, as clearly they are from time to time, the impact falls not on the fixed costs but on the science budget. I am slightly saddened to see the response of the Minister in another place, Mr Jim Fitzpatrick, to a Written Question in the House of Commons in November, in which he reported that there will be a decline in the resource budget for the British Antarctic Survey from £40.7 million in 2007-08 to £37.8 million in 2009-10, and a rather more severe decrease in the capital budget. I do hope that these figures will prove to be a cautious estimate.
	I noted the plea of the noble Viscount, Lord Montgomery, for what he described as a coherent policy between the Arctic and the Antarctic, and I very much support him on that. We do need a satisfactory balance between Arctic and Antarctic research. It is perfectly reasonable that the United Kingdom should note its interest in mineral extraction, oil extraction, shipping and fishing in the Arctic regions. Fishing is of particular interest when you remember that the conservation of Arctic fish stocks will become ever more pressing as the Arctic ice recedes. Again, both previous speakers mentioned the pressing issue of climate change and the importance of the polar regions.
	It follows that it is difficult to predict the consequences on the west Antarctic ice sheet or, in the northern hemisphere, the Greenland ice sheet of further warming and melting, and over what timescale. Albeit on a longish timescale, some models predict potentially devastating long-term effects on coastal communities. We may be talking about hundreds of years or perhaps millennia. Nevertheless, it is highly important that we work further on these predictions. About 25 per cent of the land mass in the northern hemisphere is influenced in one form or another by permafrost. The effect of global warming on permafrost is that methane is removed, which increases the global greenhouse effect. Methane is infinitely more dangerous than carbon dioxide, so we need to look at these issues very carefully.
	Even without climate change, the need for another international scientific agenda in the polar regions would be compelling. As we discovered in the previous polar years, we can use the vantage point of the polar regions to study much about our planet. The Earth's inner core, the Earth's magnetic field and geospace are correctly in the draft themes for the International Polar Year, simply because of the previous record. But climate change adds further urgency to the need for this International Polar Year, making the case overwhelming. I hope that we ensure that we are able adequately to play our part, not just for the two years but for longer, in the Antarctic and the Arctic polar regions.

Lord Jopling: My Lords, your Lordships have already been reminded that, following the signing of the Protocol on Environmental Protection to the Antarctic Treaty in 1991, I was invited by the Government, having drawn a satisfactory position in the ballot for Private Members' Bills, to sponsor a Bill in the other place to allow the United Kingdom to ratify the protocol. Having steered the Bill through another place, I was fortunate to procure the willing and enthusiastic support in your Lordships' House of my noble friend Lord Montgomery of Alamein. He has a long history of enthusiasm for this area and I am grateful to him for the work that he did in sponsoring the Bill at that time and for sponsoring this debate.
	Our work ended in the creation of the Antarctic Act 1994. The United Kingdom ratified the protocol in April 1995. It came into force in 1998. At that point, I felt that we had done everything necessary to preserve the environment of that unique, wonderful continent surrounded by the southern seas. But, in recent years, I have become increasingly uneasy about various developments in the Antarctic continent. In the brief time that we have, I should like to comment on some of these. I hope that the Minister will also comment on the reservations and worries that I have or at least assure us that they will all be raised at the deliberations of the International Polar Year, which begins in March. This debate comes at a very appropriate moment, as the International Polar Year begins its work in a few weeks' time. One thing that I hope will emerge, which was raised by the noble and learned Lord, Lord Archer of Sandwell, is that the role of the international secretariat will be strengthened, because it is vital for the preservation of the unique elements of Antarctica.
	My first anxiety concerns the growth of tourism in recent years. In the past 10 years, the number of tourists visiting Antarctica has grown from fewer than 10,000 to an expected 38,000 this year. Most tourism is properly controlled by the Antarctic tour operators' rules, which stem from our Antarctic Act 1994. The Antarctic tour operators do a good job with that, but there is not enough control over the tour companies which are outside those tour operators' organisations and influence. More and more, they are sending groups to Antarctica who are not controlled and monitored within the rules of the Antarctic tour operators. There is a real danger that non-native species will be introduced into Antarctica, which is exactly what our 1994 Act sought to avoid.
	My second anxiety concerns the potential impact of new techniques for catching Antarctic krill, which are small crustaceans that are vital foods for such species as whales, penguins and seals. New techniques have evolved to avoid Antarctic krill rotting between the net and the ship—if I can put it that way. It is said that there are 100 million tonnes of krill in Antarctic waters. My noble friend Lord Selborne referred to the problems of the fisheries. Previously, the fishing techniques were not effective. But, now, the Norwegians have been catching 120,000 tonnes a year. They have made a breakthrough in the techniques and methods of catching Antarctic krill. As my noble friend said, this could lead to serious over-fishing in years to come. Over-fishing could have a serious effect on some of the species, such as whales, penguins and seals, which live on the krill. Although, as a former fisheries Minister, I have reservations about the monitoring of catching and total allowable catches, I hope that something will be done soon.
	My final concern is something which, again, the 1994 Act sought to avoid. We are told that Australia is having scheduled flights to Antarctica. The United States has built a 1,000-mile ice highway and China, India, the Czech Republic, Estonia, Belgium, South Korea and the United Kingdom are extending or establishing new research stations. At the same time, I get the impression that a number of international companies are salivating over the prospect of extracting minerals or oil from Antarctica, which, again, is exactly what we thought the 1994 Act would block. I hope that I am wrong and that the Minister will tell us that all these matters will be dealt with in the International Polar Year. They are vital for that wonderful continent, which we should do everything to preserve as a wilderness.

Lord Avebury: My Lords, I join in the thanks which have been expressed to the noble Viscount, Lord Montgomery, for his success in securing this timely debate and for his long involvement in polar issues. I hope that he will ensure that we do not have to wait another 13 years before we can debate the results of the IPY, and that he will get a positive answer from the Minister on the retention of HMS "Endurance".
	In December, an island off the coast of India that used to have 20,000 inhabitants vanished below the waves. It was the first of an increasing number of islands that will disappear as sea levels rise due to global warming—by as much as six metres before 2050 if we accept the figures given by Al Gore in his video, "An Inconvenient Truth". Where I live, just the other side of Camberwell New Road, we should be just above the shoreline, but if there has been a miscalculation and it turns out that sea levels rise by eight instead of six metres, the end of my road will be submerged, together with much of Lambeth and Southwark. Your Lordships can see what will happen in their own areas if they look at the website flood.firetree.net, a great piece of work by Alex Tingle.
	Much of the scientific work of the International Polar Year will focus on climate change, of which the rise in sea levels is only one of the harmful effects. It is one that may become more accurately predictable through atmosphere-ocean general circulation models such as the one being developed by the UK's Hadley Centre, and the Liverpool-based Proudman Oceanographic Laboratory's IPY project to measure Arctic and Antarctic polar coastline sea levels as a contribution to the Global Sea Level Observing System. But we already know that the glaciers which drain the Greenland ice sheet are flowing twice as fast as they did two years ago, and if that sheet were to disappear altogether, sea levels would rise by 7.2 metres. I therefore welcome the noble Viscount's proposal that the British Antarctic Survey's remit should be extended to cover the North Pole as well as the South Pole. The connection between the two was underlined just the other day when it was discovered that the fragmentation of the Larsen B ice sheet was caused by a climatic event off the coast of Alaska. They are very closely connected. The British Antarctic Survey reckons that the west Antarctic ice sheet would not need to thin by very much for the ice to float, and therefore might become capable of rapid deglaciation. That is now a major research priority because if deglaciation were to begin, the present rate of sea level rise of 2 mm a year would accelerate and the total loss of this sheet would result in an average five-metre rise world wide.
	There is UK participation in over 40 per cent of the 228 IPY-approved projects, a remarkable testimony to the distinguished contribution being made today by many UK research institutions and universities in the field. The extent of international collaboration in these projects is in accordance with the concluding statement of the Antarctic Treaty meeting in Edinburgh, which said that members would champion,
	"increasing international collaboration and co-ordination of scientific studies within Antarctica".
	But I wonder if the process has gone far enough. Some experts say that there are too many research stations in Antarctica doing work of low calibre, and your Lordships' Science and Technology Select Committee thought that more could be done to ensure that bases communicated more effectively with each other on scientific matters. Some 27 different states have their own facilities—I do not know whether the noble Lord, Lord Jopling, has counted them, but he did refer to this as a matter of concern—and a number of new ones are being built as part of the IPY programme. The Belgians, for instance, whose scientists have been content to work in other nations' bases for the past 40 years, are spending $8.2 million on a new base to accommodate 12 people for part of the year.
	The Government say that they would be extremely supportive of an initiative to avoid duplication or to foster collaboration in science programmes, but they do not believe the Scientific Committee on Antarctic Research should do the job. With nine EU states having their own national bases and a 10th coming on stream, is there perhaps an argument for a common European policy and a common European programme on polar research? Collectively we might be able to match the impressive facilities of the Americans with their new $153 million facility at the South Pole designed to accommodate 150 people and approaching completion during the IPY. It has a 10-metre sub-millimetre wavelength telescope to look at the cosmic microwave background now being installed, and a high-energy neutrino detector employing thousands of photo sensors spread out over a cubic kilometre below the base. If Europe got together, could we undertake projects of that size and complexity, and expand our use of satellite measurements which the BAS says are revolutionising the study of ice sheets? The BAS core budget is around £37 million, compared with a $346 million budget for equipment and logistics alone for fiscal year 2007. Can the noble Lord tell us what is the collective total spend on polar research by the European Union and how it compares with the United States?
	I was disturbed to hear what the noble Earl, Lord Selborne, had to say about the long-term funding of research by the United Kingdom because I think noble Lords will agree that the UK gets excellent value for money from the BAS. Further, since the Stern review suggests that, with a business as usual scenario, climate change would mean an average 20 per cent reduction in standards of living across the world, the Government ought to be asking NERC whether its funding strategy places sufficient weight on the importance of polar science and the work of the BAS in particular. Perhaps we should propose that a hefty charge be made on tourists visiting Antarctica, not only to reduce the numbers which have caused concern because of their environmental effects, but also to help defray the increasing costs of international research projects.

Lord Astor of Hever: My Lords, I thank the noble Viscount, Lord Montgomery, for giving us the opportunity to debate the International Polar Year. I also pay tribute to the noble Viscount and my noble friend Lord Jopling for their hard work to make the Antarctic Act 1994 possible.
	This country has played a major role in the exploration and study of the Antarctic since Captain Cook's expeditions in the 18th century. The recent generous decision by Lady Philippa Scott to give the last letters of Captain Scott to the Scott Research Institute is a timely reminder of one of our most famous explorers. The public interest is a hopeful sign that our nation's history is continuing to inspire interest in one of the most fascinating places on Earth. The extreme weather described by those extraordinarily dedicated scientists who braved the Antarctic winter, the amazing geography with both volcanoes and ice sheets, and the unique wildlife, have caught the imagination of people for many years.
	It is thanks to the Antarctic Treaty that future generations will also have the opportunity to marvel at these things. This agreement, that the whole continent should be,
	"a natural reserve, devoted to peace and science",
	has kept the Antarctic free from nuclear testing and military activities, and open to researchers. It was thanks to the success of the International Geophysical Year 1957-58 that this treaty was signed. We hope that the International Polar Year 2007-08 will be equally successful in protecting the Antarctic far into the future. Can the Minister reassure the House that the Government are doing everything possible to increase the number of signatories to this treaty? My noble friend Lord Jopling was concerned about the rise in tourism to the Antarctic, not all of which is responsible. The remotest parts of the world are becoming increasingly accessible to more and more people. As different forms of tourism grow and the ways to exploit the world's resources become ever more inventive, it is critical that as many countries as possible are signed up to the treaty and the environment protection protocol. The noble Viscount also raised concerns about HMS "Endurance" which I share. I hope that the Minister will be able to assure noble Lords on this point.
	The expected visit by Princess Anne to the Antarctic this week will be the first by a member of the Royal Family. It will, I hope, serve as a timely reminder of how fragile both the environment and the earliest buildings built there are. The Antarctic Heritage Trust, of which Her Royal Highness is patron, is undertaking sterling work to preserve and restore Scott's discovery hut and belongings. I hope that this visit will encourage the donation of the necessary funds.
	Antarctic research has never been more important or relevant to the rest of the world. As one of the two world regions being affected most by global warming, it is crucial for our understanding of what effect human activity has on the world around us. It was in the Antarctic that scientists were able to study what we were doing to the ozone layer. It is there that we are now able to measure the atmospheric make-up over the past 10,000 years. Even regional changes in Antarctica can make themselves felt across the world, as the collapse of the massive Larsen ice shelf brought home to us in 1995. Antarctica's ice sheets hold enough water to cause a 57-metre rise in sea levels if they were to melt.
	As climate change has a greater political priority, and as we decide on how we will react to the threat of global warming, the extent and accuracy of scientific data is crucial. Research is needed to convince those who continue to have doubts about the necessity for measures such as carbon trading. It is also needed to make sure that our responses are accurately targeted, sufficiently robust and, above all, effective. The Government must tread a fine line between knee-jerk reactions to inaccurate scare-mongering and an ostrich-like refusal to see what must be done. For this, we need credible, non-partisan evidence. I hope the Government will continue to support independent research and take care that public policy is not laid open to the charge that it is based on flawed data.
	My noble friend Lord Selborne mentioned the Antarctic Treaty consultative meeting held in Edinburgh in June. The numerous public events—from lectures and exhibitions to tours of the British Antarctic Survey's ice ship RRS "James Clark Ross"—were fine examples of how the public can be involved in and educated about the work going on. I am sure that the Minister shares our hope that the International Polar Year will raise more public awareness nationwide and around the world. I support the calls for a report of the IPY findings to be presented to the Secretary-General of the United Nations at the end of the year as a way of raising the profile of the IPY and the work it does.
	There is an enormous public appetite for learning about the natural world and science in general. It has been demonstrated recently by events right across the spectrum, varying from a children's animated film based on the dangers of interfering with a species' food supply—highlighted by tap-dancing penguins—to the large number of visitors to the exhibition resulting from the Shell Wildlife Photographer of the Year competition at the Natural History Museum.
	I hope that this will make up for the baffling belief held by the Government that it is possible to turn out world-class scientists from our education system without a solid grounding in science from a young age. One of the most important lessons that the Edinburgh conference teaches us is that science is a multi-discipline area where co-operation between scientists of different stripes is necessary for the most relevant programmes. Our education system should be providing this solid grounding, but I have the gravest fears for our future contribution to science in the face of continuing resistance to giving every child the opportunity of studying all three core sciences at GCSE. It is no surprise that science faculties at universities are closing from a lack of applicants, as fewer and fewer children are given the opportunity of pursuing their interest in these subjects.
	One country can make a difference; the £5 million funding initiative from the Natural Environment Research Council in 2004 provided a catalyst for other countries to make their own contributions to the field. I hope this Government will do everything in their power over the next year to engage as many other states as possible in the International Polar Year. I wish everyone involved great success.

Lord Triesman: My Lords, I join other noble Lords in congratulating the noble Viscount, Lord Montgomery, on securing this debate, which was rightly described as timely. I know well the keen personal interest that he has in Antarctic matters, because he steered the Antarctic Act 1994 through this House, and from his continued attention to the detail. I am pleased that the time has returned for another debate, even if that is after 13 years; let us hope that it is not another 13 years until the next. I am also delighted that the noble Lord, Lord Jopling, who had such a role in another place, has taken part. I thank all noble Lords who have spoken of their interest in the UK's polar work, and for doing so with such enthusiasm. I shall try to deal with all the points raised.
	I start by joining the noble Viscount, Lord Montgomery, in congratulating Dr Mike Richardson, who retired as the FCO's head of polar regions unit in December 2006 after 15 quite remarkable years. We owe him a lot. I also want to say immediately how much I agree with the noble Lord, Lord Avebury. The remarkable contribution of UK exploration and science is vital, and it is critical that we continue it. Aside from the prospect of the noble Lord's house being flooded, your Lordships' House is likely to be flooded as well. These are by no means trivial issues as we look at them.
	I also take the point that the noble Lord, Lord Astor, made about the necessity of continuing in the traditions of the best scientific work. Of course, that means stimulating children to be interested. I draw a little comfort from the fact that, in the scientific world, we are a nation that punches well above its weight as matters stand, if one looks at cited and refereed journals and so on. None the less, there has to be a commitment to keep that going, which I myself feel strongly.
	We are standing at the beginning of International Polar Year 2007-08. The IPY will be an intense, internationally co-ordinated campaign of research to initiate a new era in polar science, and we do have the enthusiasm for it. It marks 50 years since the International Geophysical Year of 1957-58, when international scientific collaboration in Antarctica provided a principal catalyst to the negotiation of the Antarctic Treaty in 1959. The noble Lord, Lord Astor, is quite right to say that the continent has been the subject of huge public interest and fascination through a much longer history than that; I think that he used the word "imagination", which is absolutely the right one.
	Almost 50 years ago, the UK was the first state to ratify the Antarctic Treaty. Fifty years on, the UK remains one of the leaders within the Antarctic Treaty System because of the strength of our commitment and the size of our presence in Antarctica. We are working continually to ensure that others sign up to the treaty obligations as rapidly as possible. The UK was delighted to host for the first time since 1977 the Antarctic Treaty Consultative Meeting in Edinburgh in June last year. The Princess Royal not only showed great support, but did so with great knowledge. That was a real benefit to the conference, which I had the privilege of attending and speaking at.
	Hosting the ATCM gave us the opportunity to showcase the United Kingdom's historical, scientific and political contribution to Antarctica. We were widely congratulated not only on the highly professional organisation of the meeting, but also on using the opportunity to promote Antarctica to the public. The United Kingdom led discussions in Edinburgh on the identification of future priorities in order to ensure the continued protection of the Antarctic environment, to which I will return. We also led the debate about the future management of tourism—another issue I will return to in just a moment—concentrating in particular on whether the treaty parties should seek to place restrictions on the size and number of vessels operating in Antarctica to minimise the risk to the environment.
	The UK has also led the development of new site guidelines for tourist visits to key Antarctic sites, and 12 new such guidelines were adopted in Edinburgh. Our draft guidelines for ballast water exchange in the Antarctic treaty area were also adopted. We launched a new interactive education website—very important for reaching younger people and keeping them interested—which subsequently achieved a Bafta nomination, and a wildlife awareness manual to provide guidance to helicopter operators in Antarctica to minimise disturbance.
	Edinburgh was, as the noble Earl, Lord Selborne, rightly stressed, a success. I was pleased that the FCO played the role that it did, and I pay particular tribute to the British Antarctic Survey, which was fundamental to the success of the conference. Long-term research and continued data collection are vital, and the BAS has an outstanding history.
	In parallel to the meeting we organised a public awareness campaign, "Discover Antarctica", which included lectures, presentations, exhibitions and a visit by HMS "Endurance" and the British Antarctic Survey's Royal Research Ship "James Clark Ross". That public outreach campaign, organised jointly by the FCO and the British Antarctic Survey, recently won the Corporate Communications award for best public service corporate communication. I believe that was an acknowledgment of its success.
	The ATCM was an opportunity to reinforce the UK's ongoing commitment to the provisions of the Antarctic treaty. Almost 50 years on, I believe it has stood the test of time. The International Polar Year is the most significant commitment to polar science since 1957. In order to commemorate and communicate the IPY we have set aside one day of the conference to focus on the IPY's aims and objectives. As a result of that day of presentations and discussions, the Edinburgh declaration on the International Polar Year was adopted. Crucially, that gave a collective intergovernmental commitment by the Antarctic treaty parties to support the objectives of the IPY and to support the scientists taking part. Having driven this process along, the parties, we were delighted to see, were able to respond positively, as has the Arctic Council.
	During the IPY we hope that governance mechanisms of the two polar regions will seek to further enhance collaboration and co-operation, about which I will also say a little more in response to the points made by the noble Lord, Lord Avebury. The UK will play a full and active role in the International Polar Year. I am delighted that the Natural Environment Research Council is hosting and funding the international programme office for the IPY, based at the British Antarctic Survey in Cambridge. I also understand that UK scientists are involved in the development of about half of all IPY activities, as was pointed out in the debate.
	The UK already invests over £50 million every year in our polar science work, primarily in the Antarctic, for reasons of history and politics, as well as of science. I am afraid I cannot give the noble Lord, Lord Avebury, a figure for the EU, although we will see if we can aggregate one. In any case, it is hard to compare with the United States' spending on science, which in every area leaves the rest of the world well behind—unfortunately, in my view.
	We can, however, acknowledge the successes of the past. The noble Earl, Lord Selborne, mentioned them, as have others, such as the noble Lord, Lord Astor: the discovery of the hole in the ozone layer, and the environmental history book that the Antarctic provides. The importance of the data increases with each year that passes. It is a key barometer of climate change worldwide. As a result of the IPY, the Natural Environment Research Council have also invested an additional £4.9 million in new Arctic international science projects. Thus, we are committed to a leading role in scientific endeavours at both poles.
	The resource budget of the BAS, which this year is £38 million, will be £37.8 million by 2009. The difference is £200,000. There are differences in the capital budget, but, as I understand it, and I will check this, the BAS has also received additional funding to construct a new research station at Halley, which should be operational by 2009-10—not an entirely dire picture.
	That raises the question mentioned by the noble Viscount, Lord Montgomery, whether we should draw it all together in a single institution. I have said how much we invest and that we are one of the world leaders in that investment. International Polar Year highlights the importance of scientific understanding in both polar regions and we are well placed to respond to the challenge—we need to do that as well as we can. I ask noble Lords to consider that we should certainly keep our scientific funding levels at the highest level possible. However, there are different scientific and meteorological issues at each of the poles and it is important that the very best scientists, wherever they are—in United Kingdom, in higher education and research institutions—play their role. They will not all be concentrated in one place, so I do not want to see a system that might blight some research, which is often attached to other parts of research, so that it falls away.
	We cannot underestimate the work of British scientists on the physics, chemistry, geology and biology of the Antarctic, which is vital for the whole planet. That is why the BAS has set the goal of becoming the leading international centre for global science in the Antarctic context by 2012. It is quite right to do so. Already Britain can be justly proud of its input in the polar regions. I have reaffirmed our commitment and I quote my noble friend Lady Symons, who in February 2005 said:
	"We are committed to maintaining the UK's high profile within the Antarctic treaty system and we recognise that securing strong scientific support for policy input into the Antarctic treaty and supporting the British Antarctic Survey to undertake world-class science reinforces the UK's influence and status at Antarctic treaty negotiations".—[Official Report, 3/2/05; col. 475.]
	We are in the same position. The governance of Antarctica is vital for the peaceful co-operation and protection of the continent in every way.
	I shall make a few quick points about the vital issues that have been raised. Antarctica is protected from damaging conflicts arising from sovereignty disputes by the treaty which, since 1961, has put all sovereignty claims south of 60 degrees in abeyance. The treaty system seeks to protect the Antarctic environment through the protocol to the Antarctic treaty and other conventions add to it. I say to my noble and learned friend Lord Archer and to the noble Lord, Lord Jopling, that the minerals convention will not enter force in the foreseeable future, but it has been overtaken by the environmental protocol to the Antarctic treaty which prohibits mineral resource activity other than in scientific research.
	I say to my noble and learned friend Lord Archer that the Antarctic treaty secretariat will be funded. It is not totally funded at the moment but the obligation to do so by an apportionment measure enters into force and will become obligatory to all parties. It is at about the 80 per cent level at the moment. I say to the noble Lord, Lord Avebury, that the treaty and the arrangements made for International Polar Year should ensure far greater scientific co-operation and we hope that that will be enhanced.
	There are no propositions whatever in the current financial planning to reduce the readiness of HMS "Endurance". We are considering "Endurance" for the long-term; like every ship, at some point, it will need to be looked at, but there are no propositions of that kind. I believe that we can have a real impact.
	To the noble Viscount, Lord Montgomery, to my noble and learned friend Lord Archer and to the noble Lord, Lord Jopling, I make the point that we recognise that tourism is very important. It has grown a great deal and it has to be carefully planned and monitored. We have to consider the safety issues, for which "Endurance" is important, We are working hard and we will use International Polar Year to ensure that the regulations that control and support that fragile environment are at the centre of the debate, as they must be. Those concerns about impact are vital.
	I conclude by saying that this country is rightly proud of its polar history. We have sovereign interests and a long-standing interest in Arctic matters which will continue. Scientists will work in those extreme environments and I have no doubt that they will contribute to the global understanding of our planet in a general sense. In my view, having built such great foundations, it would be a tragedy to let them slip. I do not for a moment believe that we have any inclination to do so. The points raised in the debate have focused not just on what has been done but on why that is essential for the future. The Government remain as committed as anyone in the House to ensure that the future of that continent is secure.

Baroness Crawley: My Lords, I beg to move that the House do now adjourn during pleasure for one minute.

Moved, accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.29 to 8.30 pm.]

Mental Health Bill [HL]

House again in Committee.

Earl Howe: moved Amendment No. 20:
	After Clause 7 , insert the following new Clause—
	"High doses
	After section 63 of the 1983 Act (treatment not requiring consent) insert—
	"63A High doses
	No medicine or medicines shall be administered to a patient at doses that singly or in combination exceed limits set out in the British National Formulary, unless—
	(a) he has consented to that treatment up to that dose and either the responsible clinician or a registered medical practitioner appointed for the purposes of this Part of the Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or (b) a registered medical practitioner appointed under paragraph (a) (not being the responsible clinician) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment at that dose but that, having regard to the likelihood of its preventing serious risk to the life of the patient, the treatment should be given up to that dose.""

Earl Howe: Amendment No. 20 is very much in the same vein as the previous amendment but relates specifically to high doses of psychiatric medication.
	Psychiatric medication, as we have said in earlier debates, can have very serious side effects, which can be dose-related. Higher doses increase the likelihood of adverse effects and do not necessarily bring additional therapeutic benefit. When a drug receives its marketing authorisation, it is based on what are considered to be safe levels of use. By definition, if you raise the dose above the upper limit cited in the British National Formulary, you are introducing risk because the maximum dose given in the BNF is often substantially above the usual dose range. Both NICE and the Royal College of Psychiatrists have produced guidance that recognises that key point. The college's consensus statement says:
	"High-dose regimens are associated with a greater risk of adverse effects",
	and,
	"high-dose prescribing...should rarely be used".
	The existence of guidance is not enough. We know, for example, from the inquiry into the death of David Bennett, that overmedication frequently occurs, not least when those being medicated are people from black and ethnic-minority communities. Dose levels are often upped if they are not seen to be working but it is not uncommon for that to happen where not enough time has been allowed to let the medication work. It also happens when it would be better to take a step back and consider a completely different approach to the problem. But many psychiatrists like to stick to the medication that they know and do not like to change.
	I think we should be quite disturbed by that evidence. It tells us that the mere existence of guidance does not guarantee good practice. What is the answer? The Royal College, through its Prescribing Observatory for Mental Health,has recommended that service users should be informed if they are receiving high-dose or combination antipsychotics, and the joint scrutiny committee on the 2004 draft legislation recommended that doses of treatment above the BNF levels should be allowed only in exceptional circumstances and when all other options have been exhausted. Both these points are addressed in the amendment.
	I dare say that the Minister will argue that this is a matter of clinical practice and therefore not appropriate for inclusion in the Bill. Let me say why I think that that is wrong. When the 2004 draft Bill was published, it would have required care plans to set out the maximum dosage of drugs it was proposed to administer, specifying whether this was over BNF limits. That was an important recognition by the Government that there was a serious gap in patient protection. There is a gap. All the amendment tries to do is to address the safeguard that the Government previously agreed to. Doses above BNF limits would be made explicit in the process of consent, but if a patient who has capacity to consent does not give it for treatments that go beyond authorised limits, he should not be forced to receive them. If he does not have capacity, there need to be very good reasons why high-dose medication should be given. The hazards associated with it are justifiable only if there is a high risk of harm from not treating with it. The amendment therefore stipulates that in such circumstances the only valid grounds for exceeding BNF doses would be to prevent serious risk to the life of the patient.
	I am absolutely clear that these safeguards are right. I am equally sure that they need to appear in the Bill. To force someone to take medication that they do not want is a very serious matter. To force someone to do so when there is real risk involved is something that we would not tolerate in any other branch of medicine, and we should not tolerate it in this area either. I hope very much that the Minister will wish to consider the amendment in a positive light. I beg to move.

Baroness Neuberger: I speak to this amendment from personal experience of chairing an NHS trust with a large mental health component. I hope that the noble Baroness, Lady Murphy, will forgive me if I say that she has sometimes been critical of some of her colleagues. I, too, am about to be critical of some of her colleagues. I refer to a matter that worried me enormously. You would occasionally find consultant psychiatrists and registrars carrying out "heroic" treatment. Having found that a dose up to the formulary limit was not working, they gave more, and they talked of that with pride. That was one of the most disturbing matters that I came across in all my time walking round the locked and ordinary mental health service wards. The noble Earl, Lord Howe, is right to say that this measure must be included in the Bill. Guidance to the effect that this practice should not be followed has been in place now for many years, but the truth of the matter is that it is still done, and is commonly done.
	I have looked at the report on the death of David Bennett and listened to the evidence of Dr Kwame Mackenzie, who has studied this matter in detail and is worried that patients who are seen as big and black are still given larger doses. Dr Chandra Ghosh says that if the dose is not working it is illogical simply to give more and more of it. The more you look at that, the clearer it becomes that there is a real problem here. I do not believe that just having the measure in the Bill's guidance will work. It needs to be in the Bill. I strongly support the noble Earl. I hope that the Minister will recognise that the provision needs to be stated very firmly in the legislation.

Baroness Murphy: The noble Earl and the noble Baroness outlined very clearly why this amendment should be in the Bill. I stress that doses of medications outwith the British National Formulary limits can help on rare occasions. But the amendment does not rule that out. It would merely ensure that there is a secondary certificate to say that this should be done or that the patient has consented to it, so that there is a clear record and clear second opinion. This practice is probably improving. I certainly saw a dramatic improvement in special hospitals' prescribing of high doses of medication; it did come down. Nevertheless, it still goes on. It seems to me that by its nature it cannot be subject to randomised controlled trials, which can be done only with the doses of medication approved by the companies manufacturing the drugs. This would enable it to continue on rare occasions, but only when it has the full support of those who have been considering the case, in addition to the responsible medical officer.

Lord Hunt of Kings Heath: This has been an interesting short debate. I do not disagree with the noble Lords and the noble Earl, who commented on the impact of what can be very powerful drugs and on the dangers of overmedication.
	However, this is ultimately a matter of clinical practice. There would be real difficulties with putting into legislation what the noble Earl seeks to do. I accept, however, that there are issues regarding clinical practice and the code that need to be addressed. In medicines management in general, in mental health trusts, there are a number of challenges that fall to be met. I will come back to discuss a Healthcare Commission report on that, published last Friday.
	The amendment aims to put restrictions on prescribing medications at doses above the limits supposedly set out in the British National Formulary. It is worth pointing out that the BNF does not set, or even purport to set, any such limits. To quote from the BNF itself:
	"The doses stated in the BNF are intended for general guidance and represent, unless otherwise stated, the usual range of doses that are generally regarded as being suitable for adults".
	The BNF further states:
	"The BNF is designed as a digest for rapid reference and may not include all the information necessary for prescribing and dispensing".
	It goes on to say:
	"The BNF should be interpreted in the light of professional knowledge and supplemented as necessary by specialised publications and by reference to the product literature. In areas requiring specialist expertise, it is expected that the BNF will be supplemented by specialist knowledge".
	The BNF does not provide guidance on calculating high doses when combinations of similar drugs are used, referred to as polypharmacy.
	The noble Earl, Lord Howe, referred to the Royal College of Psychiatrists council report Consensus Statement on High-Dose Antipsychotic Medications. The statement acknowledges two different mechanisms for determining a high dose when using a combination of different antipsychotics. One method involves converting each drug into chlorpromazine equivalents, while the other method adds together the percentage of the BNF limit for each of the drugs used. The statement uses the latter method in its guidance, which addresses best practice, to limit the need for high doses, and best practice in the use of high doses and polypharmacy.
	We believe that, in the end, these matters are best left to clinical judgment, in the light of the various guidelines given. That is the best approach. Noble Lords will see that there are, and would be, severe practical difficulties in using the BNF provisions in statute in the way described, for the reasons that I have given. I accept that there is a challenge here to do all we can to ensure that clinicians prescribe doses in the most appropriate way possible. We believe that the code of practice, and all that is associated with it, is the best approach to this matter.
	I would also like to take this opportunity to comment on the Healthcare Commission report, published last Friday, Talking about Medicines: the Management of Medicines in Trusts Providing Mental Health Services. I commend that report to your Lordships. It highlights the importance of safe, effective and efficient medicine management as central to the delivery of high quality patient care. I assure the noble Earl, Lord Howe, that the department, the trust and the commissioners will want to review the recommendations in that report. That is one way that we can look to dealing with some of the issues that the noble Earl raised tonight.

Earl Howe: I am grateful to the Minister for his full reply. While I had not expected him to accept the amendment, I had looked forward to a constructive response, and that is what he gave. I hope that this is an area that the Healthcare Commission will look at. Judging by the contributions around the Committee, it is an issue that concerns a number of people who are in a position to know about it. I thank all noble Lords who have taken part. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 8 [Amendments to Part 2 of 1983 Act]:

Baroness Finlay of Llandaff: moved Amendment No. 20A:
	Clause 8 , page 5, line 2, at end insert—
	"( ) In section 8 of the 1983 Act after subsection (5) insert—
	"(6) Where a patient who has been received into guardianship is made subject to a requirement made under subsection (1)(a) above that they reside at a place specified by the guardian, and the patient has been served by the guardian with a written notice to that effect, the guardian, or any person authorised by the guardian, shall have the authority to take the patient and convey him to the place specified, at any time within the period of 14 days beginning with the date on which the notice was served.""

Baroness Finlay of Llandaff: This amendment has been drawn up by the British Association of Social Workers through the national network of approved social worker leads. It has been tabled in the light of deficiencies in the current Act, and it aims to tidy up gaps in the legislation. The noble Baroness, Lady Gardner of Parkes, initially tabled this and other amendments, and I believe that she has spoken to the Bill team about them, as has the British Association of Social Workers. I have added my name to hers.
	The amendment concerns the effect of guardianship applications. Currently, practitioners face the frustrating situation that where a service user needs to live in a particular place but is unwilling or unable to agree to do so, an impasse can often be reached. While the law provides the power to require him or her to live in a particular place and to be returned to that place if he or she leaves without the guardian's permission, no power currently exists in the Mental Health Act 1983 to take them there in the first place. As a result, guardianship is less well used, and service users are thereby less well protected than they might otherwise be.
	The Department of Health's figures indicate that about 500 people are put on guardianship each year. Overall, about 1,000 people are subject to guardianship at any one time. However, 15 authorities, out of 150 in total, account for over half of those applications. It seems that some authorities do not use this measure at all. The problem with the current legislation is that there is no power to convey the person to the place where they need to live.
	The anomaly arises from an oversight during the passage of the 1983 Act. In its original form as the Mental Health Act 1959, guardianship gave the guardian the powers of a parent over a child under 14, which meant that a power to transport was inherent. When this provision was removed in 1983 in favour of a list of specific powers, it was not recognised that a specific transporting power was required. The amendment would increase the scope of guardianship as a less draconian, welfare-driven rather than treatment-oriented alternative to a community treatment order. I hope that the Minister will be minded to accept the amendment as a solution to a current problem. I beg to move.

Baroness Royall of Blaisdon: The noble Baroness clearly and rightly wishes in the amendment to rectify an apparent anomaly in the Act. A patient subject to guardianship may be returned to the place where he is required to reside if he absconds from it, but there is no specific power to take him there in the first place. That is inconsistent, and there clearly is a lacuna in the Act. We recognise that there should be a specific power.
	However, I draw the Committee's attention to Schedule 3 to the Bill, which in paragraph 3(5) inserts a new subsection into Section 18 of the Act. The new subsection has precisely the effect that the noble Baroness is seeking, by providing that any patient who is required to reside in a particular place under the Act may be taken there, as well as returned there, should he abscond. This provision will apply to patients subject to guardianship or on leave of absence. It will also mean that patients on supervised community treatment who are recalled to hospital can be taken to that hospital.
	I have looked back through the Explanatory Notes on this matter and I acknowledge that they do not make clear this change in respect of guardianship. I apologise for the omission. I hope, however, that when your Lordships have had an opportunity to look at the relevant subsections, they will agree that the anomaly raised by the noble Baroness is dealt with in the Bill. I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Finlay of Llandaff: I am most grateful to the Minister for her response. I am slightly relieved to hear that the Explanatory Notes were not clear, because I would not want to put my name to an amendment that was completely unnecessary and to waste the time of the Committee. In the light of her very positive response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 8 agreed to.
	Clauses 9 to 11 agreed to.
	Clause 12 [Amendments to Part 5 of 1983 Act]:

Baroness Murphy: moved Amendment No. 21:
	Clause 12 , page 9, line 5, at end insert—
	"( ) Before section 76 insert—
	"75A Advance decisions and advance statements: making and withdrawing
	(1) An advance decision is a decision, made by a person ("P") when he has reached the age of 18 and when he has the capacity to do so, that if—
	(a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and (b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued.
	(2) An advance statement is a written statement made and subscribed by a person when he has capacity to do so setting out the ways he wishes to be treated for mental disorder.
	(3) An advance decision or an advance statement may be regarded as specifying a treatment or circumstances even though expressed in laymen's terms.
	(4) P may alter or withdraw an advance decision or an advance statement at any time when he has capacity to do so.
	(5) An advance decision need not be in writing.
	(6) A withdrawal, a partial withdrawal, or an alteration of an advance decision need not be in writing.
	75B Validity and applicability of advance decisions and advance statements
	(1) An advance decision or an advance statement made under section 75A above is not valid if a person ("P")—
	(a) has withdrawn the advance decision or advance statement at a time when he had capacity to do so, (b) has, under a lasting power of attorney created after the advance decision or advance statement was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision or advance statement relates, or (c) has done anything else clearly inconsistent with the advance decision or advance statement remaining his fixed decision.
	(2) An advance decision or an advance statement is not applicable if—
	(a) that treatment is not the treatment specified in the advance decision or advance statement, (b) any circumstances specified in the advance decision or advance statement are absent, or (c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision or advance statement which would have affected his decision had he anticipated them.
	75C Effect of advance decisions and advance statements
	(1) If an advance decision or an advance statement made under sections 75A and 75B above is found to be valid and applicable to the treatment, decision or measure at the material time the person making the decision shall have regard to P's wishes as specified in the advance decision or advance statement.
	(2) Where a decision is made which conflicts with a valid and applicable advance decision or an advance statement the requirements set out in subsection (3) below must be complied with.
	(3) Those requirements are—
	(a) recording in writing the circumstances in which those measures were, or treatment or decision was, authorised, given or made, or, as the case may be, not authorised, given or made, and the reasons why; (b) supplying— (i) the person concerned; and (ii) the person's nearest relative, with a copy of that record and placing a copy of that record within that person's medical notes.""

Baroness Murphy: First of all I must remind the House that the Mental Capacity Act 2005 enables someone who has mental capacity to make a decision that they do not want a particular type of treatment if they should lack capacity in the future. A doctor must respect this decision. My amendment gives the same privilege to a person with full mental capacity to make a decision that they do not wish in the future to receive a particular form of treatment if they become incapacitated through a further episode of mental illness. This is a refusal of treatment, because no one can specify exactly what treatment a doctor will recommend in the future. It is not a demand for treatment, it is a refusal to accept some treatments. However, patients who have experienced treatment often have a good idea about what helped and what did not, and may want to express hopes and wishes about the future as well as to specify what they do not want. The noble Earl, Lord Howe, talked about this in an earlier amendment today. Patients' wishes should be heard and taken into account when deciding treatment.
	At the moment we have differential rights between those subject to the Mental Capacity Act and those to the Mental Health Act. Under the Mental Capacity Act a person can make an advance directive on refusing further treatment, for example should they develop advanced Alzheimer's disease. If having developed the condition that person does not resist medical intervention, they will be subject to the Mental Capacity Act and the advance directive will be honoured. If on the other hand they resist medical care, they may be subject to the Mental Health Act and the advance directive may not be honoured.
	I can see no good reason why for incapacitous patients there should be any distinction between using force in treatments for physical disorder and treatments for mental disorder. There are a number of reasons for saying that. First, no distinction is made between treatments for physical disorder and those for mental disorder if the patient is incapacitous but compliant. Under the Mental Capacity Act a patient with, for example, Alzheimer's disease would be able, despite resistance, to receive treatment for dental disease, for example, but not for the Alzheimer's disease itself. Secondly, the distinction between treatment for mental disorder and for physical disorder is often one of semantics—disease of the thyroid gland, for example, may cause depression or pseudo-dementia. In these circumstances treatment of the depression or pseudo-dementia would also be treatment of the thyroid disease. How are we to make a distinction between those two?
	Advance directives are a tool to empower patients to become good partners in negotiating individualised treatment and care in the future, when they have a time of crisis. When negotiated in advance as an agreement between patient and clinicians they are even more useful. Advance agreements are widely used in German-speaking countries and they are offered routinely in at least 50 psychiatric hospitals in Austria, Switzerland and Germany, where they are legally binding.
	There is evidence from a randomised control trial conducted by Dr Claire Henderson and her colleagues at the Institute of Psychiatry, published in 2004, that use of agreed joint crisis plans made during the recovery phase of an episode reduced compulsory admissions and treatment in patients with severe mental illness over the follow-up period. The reduction in overall admission was less but this was the first structured clinical intervention that seemed to reduce compulsory admission and treatment in mental health services.
	In practice patients sit down with their professional when they are well and agree to carry around a card with them that usually has the name of a relative or advocate to be contacted and an outline of a care plan and acceptable medication. Earlier today we saw the noble Baroness, Lady Knight, with her card for an advance directive on her physical care. It is similar to the cards that patients on the continent, and many patients here, often carry. The card may very well say yea or nay to ECT. Patients have very individual responses, as we have heard.
	In Illinois these arrangements are encouraged and binding. Participants in such schemes list preferred medications and the medications they would refuse, most often first-generation anti-psychotics regardless of whether they would refuse ECT. Half of them appoint a surrogate decision maker. Most desire a directive that would be irrevocable during periods of incapacity. In Illinois, the advance directive is binding for three years.
	The recent Scottish Act which we have discussed at length in Committee enables people who are detained to make an advance statement not only to refuse treatment in advance but to specify their wish for a treatment they found helpful. It is extremely helpful for a clinician when faced with a patient who is unable to express their wishes to have a clear indication of the patient's views on type of treatment. It also means that patients can play as full a part as possible in decisions on care and treatment. That is likely to improve engagement at a later date.
	In a case where an advance decision or statement is being considered there have to be processes to decide whether the decision is valid and applicable—that is, whether the circumstances are those the person envisaged when expressing their view—in order to protect the patient and the clinician from misunderstanding or error. These amendments would provide a framework for doing so. In summary, I want to introduce a mechanism and support for patients' participation in their own future care and respect for their autonomous decisions when they are well. I beg to move.

Lord Carlile of Berriew: I support the amendment. It has been moved with great cogency by the noble Baroness, Lady Murphy, who cited evidence from the profession. I add nothing to that.
	I remind noble Lords that the joint scrutiny committee recommended, after hearing evidence, that:
	"the Government bring forward legislation ... which would enable people to make advance statements and to record advance decisions, particularly if there is a treatment that they would not wish to receive".
	One or two examples of that have been given by the noble Baroness. The committee also recommended,
	"that the arrangements provide for these statements (in relation to any future mental health treatment) to be taken into account by, but not become binding on, clinicians in determining the provision of medical treatment for mental disorder under the Act".
	I confess to great disappointment that that clear conclusion of the joint scrutiny committee has not been included in the Bill.
	I remind the Committee that, in November 2002, the Joint Committee on Human Rights, in its 25th report, recommended at paragraph 91 that,
	"the right of patients to give directions about their future treatment, during periods when they are capable of doing so, should be respected where doing so would not present a threat of death or serious harm to the patient or anyone else".
	The scrutiny committee also highlighted the first point made by the noble Baroness in moving the amendment: the lack of consistency between the Mental Capacity Act and the Mental Health Act 1983. I look forward with interest to hearing what the Government propose to do, or how they propose to justify that very obvious inconsistency.
	The amendment includes, as proposed new Section 75B(2), three sets of circumstances in which advance decisions or advance statements would not be applicable. Those three sets of circumstances seem to me to provide all necessary protection to clinical judgment and to patients in the sort of circumstances referred to by the noble Baroness. I cannot see any sound reason why the Government should reject this amendment. I hope the Minister will at the least be prepared to consider the matter further.

Baroness Finlay of Llandaff: I hesitate to draw attention to any of the wording of the amendment in the light of the two previous speakers and because the sentiment behind the amendment is so terribly important. I have a small concern as a clinician who does not work in mental health that the understanding out there is that an advance decision to refuse treatment made by someone with capacity will be legally binding and that advance statements such as the one we were shown by the noble Baroness, Lady Knight of Collingtree, are advance statements of wishes and preferences should the situation arise. However, when patients are placed under compulsion we need clarification of which Act will become the overriding Act.
	The other aspect on which I have a small concern is that the amendment says that an advance decision need not be in writing. I have a difficulty with something being legally binding if it has not been clearly recorded somewhere. If a patient wishes to tell me what they do not want done but they are not going to write it down, I will, in good clinical practice, record it in the notes. I will read it back to them and have someone there as a witness to the fact that I really am reading back what I have written. They may countersign it or have the person sign it on their behalf, but it acts as a verification procedure so that something is clearly written down and so that the wording has been checked out with the patient. If a situation arises and another clinician who has not had those conversations is dealing with the patient, those conversations are clearly recorded.
	The other provision is correct in that a withdrawal or partial withdrawal need not be in writing. However, I have another concern in that if an advance decision is going to be altered in advance, something should be clearly recorded in writing and agreed so that there is a record of the patient's wishes which cannot be disputed. The other matter is the typographical error right at the end of the amendment, which is completely trivial. I feel that the aspect of recording a decision in writing needs to be looked at.

Baroness Barker: Perhaps I may just respond to the noble Baroness, Lady Finlay. In drafting the amendment people were trying to do the same as we discussed the other day in relation to impaired decision-making—to bring about an equivalent provision to the Mental Capacity Act but to lower the threshold because we have to deal with people whose decision-making ability becomes impaired. In so doing, an error has occurred in the amendment. It should make explicit that the decision either to withdraw or to give life-sustaining treatment has to be in writing. The noble Baroness will perhaps agree with me because she sat through all the long discussions on the Mental Capacity Act, when we went through these matters with great care and attention. Under the Mental Capacity Act there is no need for a withdrawal to be recorded in writing. That is to enable sufficient flexibility for the patient and the clinician to cover a change in the patient's wishes or a change in the circumstances. Given the very strong views of the noble Baroness on this, I do not believe she would want to change that. I accept her point about the written record. One of the reasons why this sort of thing has crept in is—as I understand it, having read chapter 32(a) of the draft code of practice, where the Government set out their main intentions—that there is no distinction between patients who have capacity and those who do not. I wonder if the Minister could respond to that.
	I turn to the point of the noble Baroness, Lady Finlay, who asked which Act would come into effect. She will find that in another part of the draft code the Government make it absolutely clear that Part 4 of the Mental Health Act always has supremacy over any statement in the Mental Capacity Act. It is for those reasons that we on these Benches believe that there has to be an equivalent and that we therefore need these statements on the face of the Bill, as they are in the Mental Capacity Act.

Earl Howe: I hope this is a matter that all of us on the Committee can sign up to, at least in principle, without serious argument. We are dealing here with a proposal that, par excellence, could deliver a step change in patient empowerment for those with mental illnesses. When the Government responded to the Joint Scrutiny Committee report in 2005, they sounded quite positive about advance statements and decisions. They said that they were carefully considering how a provision of some sort could be placed on the face of the Bill. It is really quite disappointing that nothing has appeared, but it is not too late to find a way through. I hope that the Minister will be receptive.

Lord Hunt of Kings Heath: This has been an interesting debate. I know that the House discussed these issues at length when we considered the Mental Capacity Bill, now the Mental Capacity Act 2005. That Act put advance decisions on a statutory footing and provided for any person to say in advance that they want to refuse treatment if they lose capacity to make such decisions in the future. A valid and applicable advance decision to refuse treatment has the same force as one made by a person with capacity and must be followed.
	The Mental Capacity Act provides that these advance decisions do not apply where the person is subject to Part 4 of the Mental Health Act, nor the new Part 4(A) provided for in the Bill. That is because the Mental Health Act provides for circumstances in which a patient with a mental disorder can be treated without consent in order to protect themselves or others. Of course we believe in the importance of taking account of a patient's wishes as fully as possible, including those expressed in advance. I assure the House that we will give guidance to practitioners in the code of practice on giving those views due consideration whenever decisions about the care and treatment of the patient are made. I have noted the comments of the noble Baroness, Lady Barker, about the code of practice. I will look into those matters and come back to her.
	It is in the nature of this legislation that compulsion is provided for, precisely because the patient may not wish to have the treatment that he needs. Clearly, compulsion is no light matter. We have many safeguards in place. Good clinical practice demands, wherever possible, that treatment is provided under this Act with the consent of and in accordance with the wishes of the patient. Clearly, the more that a patient is engaged with and contributes to the process by which decisions are made, the better are the outcomes for him.
	Briefly, I shall outline a number of scenarios in which we do not think that the amendment would work, but where we believe that professionals should consider past expressed wishes. A past wish is not always relevant only where the patient has lost capacity, but it is not clear in the amendment that it is intended that an advance decision is only ever applicable where the patient lacks capacity. A patient may choose not to discuss a matter with a mental health professional for a variety of reasons, or it may not be appropriate to have a discussion when it is needed. For example, the patient may be particularly agitated and discussing the type of treatment that they urgently need may only increase their agitation in a way that the professional judges unacceptable.
	In managing that situation, we would want professionals to consider what they know about the patient's views and any relevant past discussions that they have had. That is good practice. We think that that is best addressed in guidance. We do not want professionals to consider that they need only take patients' past views into account where they now lack capacity.
	Even when professionals are having contemporaneous discussions with a patient, we would expect them also to consider what the patient had said or written in the past and raise that in their consultation as appropriate. A patient may appreciate being reminded of what they have said in the past—or indeed what had happened in the past, such as a particular response to a treatment—when considering what they want to happen in future. Where a decision is made that is contrary to the wishes of the patient, we would expect it to be recorded—whether it was not in accordance with the patient's wishes as expressed at the time or, where no such consultation could take place, if it went against the patient's past expressed views. We consider that good practice
	We all agree that advance wishes are important in determining the best treatment for a patient, stressing that importance in guidance, but the amendment is not the right way to do that. There are legitimate reasons why the advance decisions in the Mental Capacity Act do not apply where the person is subject to Part 4 of the Mental Health Act. The circumstances under the Mental Health Act in which a patient with a mental disorder can be treated without consent to protect them or others are very distinct.

Baroness Murphy: I thank the Minister for that careful reply. I must confess to being puzzled why it is possible in so many jurisdictions of the world to respect the autonomy of patients in expressing a view in advance—especially when they have already had a breakdown and make the effort to sit down with clinicians to say what has been helpful to them—and to have their wishes respected. It seems that that is perfectly possible north of the Border, and I remain disappointed that there is such opposition to the idea being accepted in this country.
	For the moment, I shall go away to think about that. I recognise that there may be some difficulties with the drafting of the amendment. I hope that we will find some way to recognise that mental health patients should have their wishes respected, especially when they are well. Perhaps we shall come back with an amendment at Report but, meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 12 agreed to.
	Clause 13 [Amendments to other provisions of 1983 Act]:

Lord Patel of Bradford: moved Amendment No. 22:
	Clause 13 , page 9, line 32, at end insert—
	"( ) In section 45 (general interpretation), in subsection (1), insert the following definition at the appropriate place—
	""care plan" means a structured plan which sets out timescales, responsibilities and services required to meet a patient's assessed mental health needs;"."

Lord Patel of Bradford: I shall also speak to Amendments Nos. 42 and 46. These three amendments are grouped because they each concern care planning. Amendment No. 22 seeks to provide a clear definition of what constitutes a care plan because it is not presently referred to in statute. This is necessary to ensure it is clear. Amendments Nos. 42 and 46 are intended to strengthen the statutory duty for the use of care planning both for community treatment orders, if the Chamber approves that provision, and for all detained patients, not just following discharge but from the outset of the order or section.
	I intend to speak to the main intent behind these amendments rather than address each in turn, and should make clear that in common usage a care programme approach, or CPA as it is known, is the term used to describe care planning. CPA is the process that should produce a care plan, but the purpose of these amendments is to make care planning itself statutory.
	As well as being chairman of the Mental Health Act Commission, I have also had a range of roles over many years in the areas of mental health and black and minority ethnic communities. I am not talking about minority ethnic communities today, although they will be among some of the main beneficiaries of these amendments. I am talking about the main practice standards.
	Care planning is a fundamental component of good mental health care. I am sure your Lordships will agree that good practice dictates that all detained patients should have a care plan as a reciprocal requirement of detention. The care programme approach, developed and promoted by the Department of Health, is the basis of effective care planning. As the noble Earl, Lord Howe, said in his eloquent speech at Second Reading on the principles that should underpin a modern Mental Health Act,
	"service users should be involved with their own assessment and care".—[Official Report, 8/1/07; cols. 13-14.]
	One would think that that was a simple enough requirement.
	One of the stated intentions of the Bill's drafters is not only that patients should be subject to compulsion under the Act if there is appropriate medical treatment available to meet their assessed needs, but also that the CPA should ensure this takes place routinely, that appropriate treatment is available and that a care plan is drawn up for each patient as soon as possible after admission that informs their continuing care while in hospital and after their discharge.
	Unfortunately, despite the Government's intentions, there remain serious problems in providing patients with robust and appropriate care plans. Quite frankly, it is not happening nearly well enough. Recent research evidence, for example the 2005 report Back on Track by the Mental Health Act Commission and the Sainsbury Centre for Mental Health, demonstrates that implementation of the CPA nationally is at best patchy. Many patients do not have a care plan, or, if a care plan is available in the patient's record, it is not followed.
	It is a significant matter for public concern that, although the CPA has been in existence since 1990, care planning is not at present done well. This directly results in the severest of consequences, such as suicide and homicide. Most worryingly, National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, published only last month, found that 71 per cent of preventable homicides and 45 per cent of preventable suicides were by patients who were not subject to appropriate CPA plans. This is despite clear evidence of severe mental illness, previous violence, self-harm or admission under the Mental Health Act. The report emphasised the importance of ensuring that CPA is properly used for high-risk groups.
	Many homicide inquiry reports have found similar evidence of incomplete or ineffective implementation of CPA leading to the most severe outcomes. An example from one of the most recent of these is the MN inquiry. MN stabbed and killed an elderly woman he did not know in her own home. The report concludes that the lack of CPA for MN was a contributory factor to the death of this elderly woman. It concludes,
	"even though MN was subject to s3 and on s17 leave this did not ensure he received care according to the basic standards of CPA".
	Indeed, it stated:
	"The impact of CPA on MN's care was virtually nil".
	The inquiry report adds:
	"It is expected that the Government will introduce compulsory ... treatment in the community, through amended ... legislation. We cannot emphasise too strongly that this must be backed up by an effective framework for community care".
	Where a tribunal hears any application concerning a patient,
	"this must, in our opinion, include a review or at least a consideration of their CPA care plans".
	Similarly, the inquiry into the John Barrett case, published in late 2006, shows once again the need for good risk assessment and properly drawn up and implemented care plans in managing potentially violent or disturbed patients. Gillian Downham, barrister and the chairman of several of the homicide inquiries, including the inquiry into the MN case, was concerned enough about the repeated failings of CPA to commission an examination of CPA nationally. That was followed by a seminar that I chaired and which involved some of the leading people in the health, social care and legal professions to advise on the future of CPA. This resulted in specific national recommendations for strengthening CPA care planning, and what better way in which to do that than by making it a statutory responsibility?
	Recommendations from the full range of inquiries have consistently included calls for practice to be driven by care planning and review. Most of these reports stress the importance of fully involving patients, service users and carers in care planning, and that this should include adequate risk assessment so that care planning can contribute to the prevention of incidents and ensure patient and public safety. In the Mental Health Act Commission's most recent biennial report, which is to be laid before this House, we wrote:
	"Patients' care plans under the Care Programme Approach are supposed to anticipate crises, and should take account of patients' preferences in interventions. If care plans can specify actions on the part of the patient or services that will intervene in the early stages of any crisis and possibly avert it, the need to override the patient's choices through compulsory admission may be avoided altogether".
	Of course, one of the most significant drivers for the Bill has been many people's concern about public safety. In essence, this means the assessment and management of risk to ensure that people receive the best possible care and treatment. I would be the first to argue that the Mental Health Act should be concerned predominantly with patient care, and I, along with many others in this House, remain concerned to ensure the right balance between the objectives of patient care and public safety. I strongly argue that care planning is central to achieving that balance.
	Good patient care based on care planning requires that clinicians follow a robust process of assessment and review, with appropriate treatment, care and support identified for the patient, especially on discharge. Care planning, however, does not define a specific intervention or set of interventions; it is a process, and as such it lends itself well to statutory regulation. And although the clear benefit for patients and the public that would result should be enough on its own to recommend these amendments, it would also underpin the community treatment order if the House approves that part of the Bill. Moreover, tribunals would be in a position to check the existence of care plans, ensuring that patients subject to the Mental Health Act in the community are being provided with a service and thus reassuring the public of their safety.
	The Department of Health has recently issued a consultation document on ways of improving CPA. The current proposals are unlikely to deal with what appears to be one of the main problems: the unwillingness, whether intentional or not, of some services and clinicians to give care planning the importance it deserves. One improvement must be to encourage greater clinical involvement, but I am forced to draw the conclusion, based on the evidence and the continuing spate of inquiries into homicides and suicides that I have highlighted, that effective implementation will be achieved only by giving the process statutory force and by ensuring that good practice is adhered to. After 16 years of Department of Health CPA guidance and guidelines, I also firmly believe this is now the only way in which compliance with CPA can be achieved.
	As I have already stated, I would be the first to argue that the Mental Health Act should be concerned predominantly with providing the best possible care for the patient, and we in this House are right to be concerned that some of the provisions of the Bill may not have achieved the correct balance between the objectives of patient care and public safety. Yet a very straightforward opportunity to tighten up the present system has been missed. These amendments would provide a straightforward opportunity to address this. Making care planning a statutory requirement would improve care for patients, ensure the safety of patients, and contribute significantly to improving wider public safety. I beg to move.

Earl Howe: The noble Lord, Lord Patel of Bradford, has very ably articulated the case for the principle of reciprocity and I support all that he said. One could put his case a slightly different way by saying that just because patients are subject to compulsion, they should not have to put up with poor services. By including a measure that places care planning for detained patients on a statutory footing, I believe that the Government could send a clear signal to patients and mental health professionals that this Bill is not just about coercing people into treatment; it is also about ensuring that necessary psychiatric coercion will be effective and will help a patient to regain and retain the freedoms that need to be temporarily taken away.
	The amendment is designed to provide some reciprocal benefit to people subject to compulsory powers. Of course, this does not amount to a guarantee of specific treatment, irrespective of available resources; rather, just as with the current statutory requirements for after-care planning under Section 117, it would require services to assess requirements and then meet them to the best of their ability. The sanction against services that failed to do this would be the ability, but not the duty, of the tribunal to discharge a patient from detention where a care plan is not being implemented. Effective care planning is also key to ensuring patient involvement and encouraging the exercise of patient choice, even if this is within the limited parameters of coercion. There is good and bad practice in this area. There are hospitals where care planning for detained patients is rudimentary at best, so a statutory duty of care planning would be a marvellous lever for use by monitoring bodies, such as the Mental Health Act Commission, as well as patients themselves and their advocates, to ensure that the failing services prioritise this aspect of mental health care.
	The noble Lord, Lord Patel, rightly mentioned the MN case, which shows that care planning is not only about the quality of service to the patient; it can also be an important factor in the safety of the public. Although the specific consequences of the failings in the care programme approach were extreme in that instance, we need to bear in mind that the Mental Health Act Commission regularly finds inadequate CPA procedures for detained patients.
	Finally, as I mentioned, under Section 117, there is a statutory requirement for after-care planning of patients who are detained under compulsory powers. Despite the understandable emphasis that the noble Lord, Lord Patel, places on the care which a patient receives on discharge from hospital, it is an irony of the current law that a statutory duty to provide such care as is assessed to be appropriate under a care plan takes effect only when the patient ceases to be detained. Amendment No. 46 seeks to extend that statutory duty to the period when the detention is in effect. I cannot help feeling that this would be an ideal lever to enable the Government's policy in relation to the care programme approach to be better achieved.

Baroness Barker: I added my name to this amendment for a particular reason. The Joint Scrutiny Committee was regularly presented with very powerful evidence from users on just how little care plans are implemented. I remember one witness talking powerfully about the number of people detained on wards who did not have their care plans implemented and the sheer frustration, and boredom, that that gave rise to on their part, as well as frustration for staff. Many witnesses supported the idea that the care plan approach should be put on a statutory basis, but the Joint Scrutiny Committee did not agree. We disagreed because we thought that it perhaps ought to be left as a matter of practice, which would be easier to change.
	However, the Joint Scrutiny Committee made two recommendations. It recommended that,
	"the Bill include a requirement on tribunals, when they are examining care plans, to consider wider concerns and considerations than purely medical matters—for example, social and housing needs".
	That is not in the Bill; it is buried deep within the code of practice, so deep that I doubt that it would emerge to see the light of day. The committee went on to
	"recommend that the codes of practice contain guiding principles for drawing up care plans which will govern the treatment and, for example, the privacy, safety and dignity of the patient".
	At the very end of the code of practice there is a simple restatement of the law on data sharing, but nothing that would amount to a statement of principles about privacy, dignity and security. What has been included in the code of practice falls so far short of what was recommended by the Joint Scrutiny Committee that it is unlikely that it would make a great deal of difference in practice. Therefore I support the noble Lord, Lord Patel of Bradford, in his attempt to highlight this issue from another angle. Much of what he said underlines not just treatment for those who present no problem whatever, but for those patients whom the Government have said all along they are concerned about, those who may become dangerous and violent. That is because a lack of implementation of care planning has often led to a build-up of tension in such patients which manifests itself in violence. That is why I have added my name to this amendment.

Lord Warner: I have a good deal of sympathy with the sentiments behind this group of amendments. Certainly no one seriously involved in this area can be opposed to the production of care plans and a care planning approach. I would be the last person to oppose them. But speaking more as a former director of social services than as a former Minister, I have considerable doubts about enshrining this approach in legislation as these amendments seek to do.
	I recognise that the 2004 draft Bill provided for a care plan that related to compulsory treatments under the Act. Personally, I am not convinced that that was a wise route to take and I am glad that the Government have decided to change course. In my view, care planning for people with mental disorders needs to cover both health and social care needs and not be restricted just to the compulsory treatment elements.
	I remain somewhat sceptical, as a former manager, of how much operational sense it makes to provide for this in legislation. It is a matter for guidance, training and codes of practice, and it is certainly one to be emphasised in national service frameworks. Alongside this, if you are trying to manage a good service, you would use staff appraisal and performance management techniques to drive up quality. For some of us who have managed in this area, these approaches are likely to be more effective than crafting words in legislation. The bad news is that passing legislation which tries to change behaviour in professionals does not always achieve its objectives, and there are tomes of evidence to show this. In any case, what constitutes good care planning is itself likely to change. What we say about this area today is very different from what we would have said in 1983. That is why I think these are very much matters for guidance and training.
	I do not delude myself that all is right in the world in this particular area of care planning. It is right that the Government are conducting a review of the care planning approach and have been seeking views on it. That is the right approach. I find myself therefore strongly supporting the view of the joint scrutiny committee in its report that the care planning approach is important and needs to be comprehensive, but is not something to be enshrined in law.
	I sympathise with the views expressed by the noble Baroness, Lady Barker. As I understood her point, the code of practice is not quite up to snuff in this area. It might be wise if the Government thought a little more carefully about how they deal with the care planning approach in the code of practice and in guidance. I suspect that that is what they would do after completing this review, for that seems the appropriate way to deal with this important subject, rather than enshrining it in legislation.

Baroness Royall of Blaisdon: I am grateful to your Lordships for raising this important subject. As noble Lords have said, it is of the utmost importance to ensure that care planning is robustly and consistently undertaken for every SCT patient, while ensuring that every patient detained in hospital has a well thought- through and comprehensive programme of care and treatment. A programme tailored to their individual needs is integral to achieving successful treatment of their condition, whether as an inpatient or a patient in the community.
	I agree entirely with the noble Lord, Lord Patel of Bradford, that the care programme approach must underpin supervised community treatment, and that it is a fundamental part of care planning. It should and will do that, but I do not agree that giving statutory force to the care planning process, as proposed by the amendment, is the best way to achieve that. Indeed, giving the CPA statutory force would require legislation to be so widely drafted as to be meaningless.
	The draft illustrative code of practice that we have published sets out the process through which practitioners should work in preparing a patient's discharge from hospital on to SCT, and recommends that the CPA is worked through for every patient. It makes clear, among other things, that the patient—and, where appropriate, their nearest relative and carers—should be closely involved in the care planning process. Officials in the Welsh Assembly Government have indicated that the code of practice for Wales will cover similar matters.
	I heard what the noble Baroness, Lady Barker, said about the code of practice. I raised those very issues with officials this morning, as it is not clear and not adequate at the moment. Yet we must remember that the code of practice is itself up for consultation, so this is a good opportunity for the noble Baroness and other noble Lords concerned about the issue to discuss with officials how the code of practice can be improved by taking their concerns into consideration.
	I entirely understand the concern expressed by the noble Lord, Lord Patel, that the CPA is sometimes not consistently applied—for every patient, that is—as that can have serious outcomes. However, I do not believe that creating a statutory care planning process is the best way to achieve improvement. It would add little to the quality of application in care planning, which, as my noble friend suggested, is the real issue here. The Government are reviewing CPA in England to look at how patients with the highest needs—as those cases highlighted in the MN review and other inquiries mentioned—can best be targeted. The review will aim to streamline the current care planning process and give patients more control over their care and treatment. Consultation is under way and due for completion in February.
	Similarly, in Wales, the Assembly Government have reviewed the operation of CPA and recently issued a report with recommendations to service commissioners and providers in Wales. The implementation of these reviews, not statutory requirements, will improve care planning for the patient group.
	The care programme approach has been developed to ensure that all people involved in supporting and caring for the patient, be they friends and family, providers of a specialist mental health service—and I note the noble Lord's point about the need for clinical involvement—community care services, housing and other services are co-ordinated to ensure that all the patient's needs are met. In so doing the approach ensures that every need of the patient is identified and that there are no gaps, duplication or even situations where different services are working at cross-purposes with the patient. Of course, implementation is the key; we have to ensure that the code of practice is correctly applied.
	It is right and proper that planning for community services—and, in some cases, the provision of some of these services—should not stop when a patient goes into hospital, as the noble Earl, Lord Howe, said. Indeed, when the patient goes into hospital, that provides an opportune time to reflect on how well the care plan has been working, to thoroughly review it and to plan how it should be changed when the patient is discharged.
	The amendment has the potential to create confusion and unnecessary bureaucracy. We need to keep some flexibility for the in-patient services to assess and provide for the care and treatment of patients in hospital as part of the care planning process. In-patient staff are already involved in the care programme approach planning process, and, as part of their own assessments and service provision, they will consider the services and treatment the patient may have received prior to being detained in hospital. The treatment plan is an integral part of the care programme approach; however, the amendment risks providing for it to replace an existing CPA.
	The quality of care programming is measured in patient experience, and we believe that this would not be best set out in legislation. The best way to improve quality is through the current review and its effective implementation, and through the code of practice. I therefore ask noble Lords to reconsider the amendments.

Lord Patel of Bradford: I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, for their contribution to the debate.
	I am keenly aware of the support among professionals, patients and communities with whom I am engaged day to day for improving the definition of CPA and ensuring it has the appropriate statutory force. In moving these three amendments I stated that it is a matter of significant public concern that CPA is not done well, and that defining it clearly and making it a statutory requirement would improve care for patients, ensure their safety and significantly contribute to wider public safety. As the noble Earl, Lord Howe, said, patients should not have to put up with poor services. In a reciprocal arrangement for detention, they should receive high quality services.
	I am not entirely convinced by the argument of the noble Lord, Lord Warner, that guidance, training and a code of practice will suffice. We have had guidance, training and a code of practice for 16 years, without success. Unfortunately not only have a number of people received a very poor quality of service, but many have paid with their lives.
	I remain convinced that we should follow this route. In my opinion it is essential for the improvement of care and public protection that CPA has statutory regulation. I urge the Government to think again seriously about these amendments, and to take action in using this opportunity to make a real difference to people's lives. It is clear to me, however, that we need more time to debate these important issues before we can arrive at an agreed settlement, therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 13 agreed to.
	Clause 14 agreed to.
	Clause 15 [Certain registered medical practitioners to be treated as approved under section 12 of 1983 Act]:

Earl Howe: moved Amendment No. 23:
	Clause 15 , page 10, line 34, after "recommendations)," insert "is amended as follows.
	"(1)"

Earl Howe: I shall also speak to Amendment No. 24. These amendments relate to Section 12 of the 1983 Act, which deals with the recommendations required from the medical practitioners before someone can be compulsorily admitted as a mental in-patient. There is a strongly held feeling that the existing provisions in Section 12(3) to (7) of the 1983 Act are complex and over-rigid, and that they have failed to keep up with the development of new patterns of service delivery. As a result they contain a number of anomalies. One could try to resolve those within the existing format, but that would probably entail considerable complication. The subsections are also concerned mainly with the relationship of the two doctors, and do not properly address the relationship with the approved mental health practitioner.
	This amendment would allow the drafting of regulations based on a set of principles, which would then govern the appropriate choice of assessors in each case. They would also allow, as the present Act does not, for a stipulation that at least one of the assessors must be completely impartial by virtue of having had no previous involvement with the patient or continuing responsibility for his case. I beg to move.

Baroness Neuberger: I support the amendment. For many of us, the key point is that one of the people concerned has to be independent: someone who has not seen the patient before or been involved in the case. We support that point very strongly.

Baroness Royall of Blaisdon: Amendment No. 24, in conjunction with Amendment No. 23, would remove subsections (3) to (7) of Section 12 of the Act and replace them with a regulation-making power. Section 12 concerns the two medical recommendations that must accompany an application for a patient's admission under the Act. An application for admission is made by an approved social worker. Subsections (3) to (7) of Section 12 set out circumstances in which a doctor may or may not provide one of the two medical recommendations that accompany the AMHP's application for a patient's admission. For example, the two medical recommendations may not be provided by two doctors from the same hospital, except in certain specified circumstances.
	The amendment would replace these provisions with the power to make regulations saying when a doctor may not provide the medical recommendation accompanying the application and when an approved mental health professional may not make the application. In particular, the amendment would allow the regulations to specify when a doctor or an AMHP may not act due to a conflict of interest, when they must have had professional involvement with the patient and when they must not, and when these requirements may be relaxed if they would result in delay involving risk to the patient or others.
	We acknowledge that if we were conducting a complete overhaul and replacement of the Act there might be many matters of detail, such as these, that we would wish to adjust. But as the Committee will know, we have deliberately moved away from a comprehensive replacement of the Act to one which concentrates on the most significant and necessary amendments. We are reluctant, therefore, to make changes that fall into the category of desirable but rather less than essential.
	This is a matter not just of the drafting of the Bill but also of its implementation, which will inevitably require considerable effort, especially if we are to bring it into force expeditiously. It will also require practitioners and others to learn and to become familiar with new rules and practices. Naturally, we are keen to focus their efforts and those of the department on key changes. However, I have heard the arguments made. We recognise that subsections (3) to (7) of Section 12 are complex provisions and that placing them in secondary legislation would allow more flexibility to ensure provision keeps pace with changes in practice over time. Given that, I would be happy to take the amendment away and consider whether it would be appropriate to come back to your Lordships with proposals that take account of these issues.

Earl Howe: I am very grateful to the noble Baroness for that helpful reply. I accept her offer with alacrity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 24 not moved.]
	Clause 15 agreed to.
	Clause 16 agreed to.
	Clause 17 [Approved mental health professionals]:

Baroness Barker: moved Amendment No. 25:
	Clause 17 , page 11, line 33, at end insert "; and
	(e) the making of arrangements for the deployment, supervision and support of persons approved."

Baroness Barker: One of the many joys of being a member of the Joint Committee was to watch my noble friend Lord Carlile as he chaired a very disparate and feisty bunch of people. He took them, in a masterful way, through some extremely complex issues and he brought before us a range of witnesses all of whom held passionate views and were very expert. He nearly managed the impossible. He produced a very good report but it was nearly a unanimous report. There was one exception. On one vote, two members of the committee—myself and David Hinchliffe, the then chair of the Health Select Committee in another place—took a dissenting view as regards keeping the distinctions for social workers as opposed to health professionals.
	We did so for two reasons. One was that we believed that it was important that the distinct traditions of social work, as opposed to the disciplines of health, formed an additional and sometimes second opinion in the health and social care treatment of an individual. The other reason was that, because we come from social care backgrounds, we appreciated the importance of the involvement of people from different organisations. Different organisations have different cultures, practices and policies. We saw the importance of maintaining those two different perspectives on decisions about the health and social care of people with mental health problems.
	It is for that reason that I have been happy to put my name to this amendment. The Bill allows the Secretary of State to give directions to local authorities about the making of appropriate contractual and management arrangements for approved mental health professionals. AMHPs—I have not quite got the acronym slipping off the tongue, as they are not yet established—unlike approved social workers, need not be employees of a local authority. They could be free agents; they could come from voluntary organisations. That may be a good and advisable thing. All that is necessary is that there should be directions on their training and approval. Thereafter all the operational arrangements about these subcontractors are left open, therefore they could be employees or have a contractual agreement with the health trust. In my view—and I imagine it would be the view of Mr Hinchliffe were he still a Member of Parliament—that does not maintain the necessary distance from the decision-making of the health trust which would be responsible for a person's treatment.
	For that reason—it is not an unfounded reason, given the overall move towards joint health and social care bodies—there could be an important safeguard for patients where somebody from a distinctly different organisation comes in and on occasion can see something that is blindingly obvious but that had been completely overlooked by people working in the particular culture of health. I hope the Government may address this point, perhaps not by means of my amendment but by tweaking the Bill, just to ensure that that small but important safeguard is there, particularly where people's social care needs are met in the community. I beg to move.

Baroness Royall of Blaisdon: Listening to the intervention of the noble Baroness, I wished I had been a member of that Joint Committee too under the excellent chairmanship of the noble Lord.
	Unlike approved social workers (ASWs), the new approved mental health professionals (AMHPs)—they just trip of the tongue—will not have to be employed by a local social services authority (LSSA) when carrying out their functions. I am aware that the concern expressed by the noble Baroness is shared by some existing ASWs and their representatives, and they believe that this will lead to situations in which arrangements between AMHPs, their employer and the LSSA are not satisfactory However, I do not think that we have to tackle this important issue through legislation.
	In opening up the role of the ASW to a wider group of professionals, we intend to bring the workforce in line with more modern ways of working. That includes allowing employers and other organisations the flexibility to develop innovative ways of co-operating to ensure that the right people are in the right jobs, with the right competencies to produce the best outcome for patients with mental disorders. Of course, it is important that LSSAs make appropriate arrangements for the deployment, supervision and support of the AMHPs, but, if we were to prescribe that in directions, we would reduce the opportunity for the arrangements to fit with local practice and we would restrict innovation and development.
	I agree that implementation details need to be structured. We do not want to leave trusts and LSSAs floundering to find solutions unassisted, so we will be convening working groups of relevant stakeholders to develop high-quality substantive employer guidance. The guidance will be developed by the employers and practitioners for the employers and practitioners, so it will be very much hands-on guidance. We will address their concerns and provide, instead of one rigid structure, options for carrying out the necessary arrangements. We will also provide examples of good practice and templates for important things such as contracts between trust-employed AMHPs and LSSAs on behalf of which they will be acting. Similarly, in Wales, appropriate guidance will be developed taking account of the views of Welsh stakeholders.
	I believe that the guidance, which will be amendable as new processes are developed and new practice comes to light, will be a much more dynamic and therefore helpful way of assisting organisations and professionals to put in place suitable and reliable arrangements to carry out their statutory functions.

Baroness Barker: As I expected, the noble Baroness went some way to address my fears, but she did not do so entirely. I still think that another outcome may be possible, that of a CSSR—a council with social services responsibility—contracting with an NHS trust to provide this service. It would be simple to do that without prescribing in any great detail where AMHPs should come from. It would be simple to write it into the legislation that they could not come from the organisation that provides the compulsory care.
	I shall consider what the noble Baroness has said, and I may return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 17 agreed to.
	Clauses 18 to 20 agreed to.

Earl Howe: moved Amendment No. 26:
	After Clause 20 , insert the following new Clause—
	"CHAPTER 2A Children and young people
	Consent to treatment for 16 and 17 year olds
	After section 131 of the 1983 Act, insert—
	"131A Consent to treatment for 16 and 17 year olds
	(1) This section applies to a patient who is aged 16 or 17 years.
	(2) Subsection (3) applies if the patient is—
	(a) capable of expressing his wishes, and (b) requires treatment for mental disorder.
	(3) Arrangements may be made by the patient—
	(a) for him to be admitted to hospital and remain there and be treated for mental disorder, or (b) otherwise for him to be treated for mental disorder,
	and he may be so admitted, so remain and be so treated, or be so treated, in pursuance of the arrangements, even though there are one or more persons who have parental responsibility for him.
	(4) Subsection (5) applies if the patient refuses to consent to or resists—
	(a) being admitted to hospital and remaining there and being treated for mental disorder, or (b) otherwise being treated for mental disorder.
	(5) The patient's refusal to consent or resistance may not be overridden by the giving of consent by a person who has parental responsibility for him.
	(6) References in this section to the patient being admitted to hospital and remaining there and being treated for mental disorder, or being treated for mental disorder, are references to his being admitted to hospital and remaining there and being so treated, or being so treated, in accordance with any of the provisions of this Act.""

Earl Howe: This brings us to the way in which the Bill impacts on patients who are children. There is a serious contradiction in the law as it stands in relation to children receiving treatment for mental illness. A young person who is deemed to be competent can consent to being admitted to hospital and can consent to treatment, but, if they refuse admission to hospital or refuse treatment, they can have their decision overridden by their parents under the provisions of the Family Law Reform Act 1969. In other words, a child can be compelled to receive treatment against his or her will despite being deemed competent to make a decision for himself or herself.
	I am aware from Young Minds that it knows of cases where parental consent has been used to admit to hospital 16 and 17 year-olds who have not consented to treatment. Young people who are admitted in that way have no access to the protective features of the Mental Health Act. That simply cannot be right or just. I like to hope that the Minister will be in agreement with me. Clause 202(5) of the 2004 draft Mental Health Bill stated that, for 16 and 17 year-olds,
	"The patient's refusal to consent or resistance may not be overridden by the giving of consent by a person who has parental responsibility for him".
	That was encouraging, but it is disappointing that the provision was not carried over into the Bill now before us.
	I should tell the Minister that, anecdotally, there is a huge amount of confusion in the minds of some practitioners about whether to use the Mental Health Act or parental consent to override the young person's wishes, when faced with a refusal from a child, either to go to hospital or to have treatment. Again, that cannot be at all satisfactory. Parents are often in the dark about what it may be best to do for their child and can agree to treatment for him or her simply on the basis that a doctor is recommending it. It is completely invidious to put parents and children in that position in the first place.
	Being a 16 or 17 year-old and having your wishes overwritten by your parents when you are adamantly against a particular treatment can severely compromise the parent/child relationship. The amendment would ensure that a young person was properly assessed under the Act, to see if it is necessary to detain him or her. He would then have the protection of that process: visits from the Mental Health Act Commission; legal representation at tribunal; and the review process within the tribunal. There would be no question of the parents feeling compromised, because they would have the assurance and knowledge that the care plan suggested was necessary and in the child's best interests. I very much hope that the Minister will consider the amendment favourably. I beg to move.

Lord Williamson of Horton: I support the amendment proposed by the noble Earl, Lord Howe. As he stated, 16 and 17 year-olds deemed competent can, currently, consent to admission to hospital and treatment. If they refuse, they can be admitted by parental authority under the Family Law Reform Act 1969, producing the rather anomalous situation to which the noble Earl referred.
	The key point for me is that, in those circumstances, a young person admitted to hospital does not have the various protections given under the Mental Health Act. Are we or are we not going to make those available? I would be grateful if the Minister could confirm what he believes to be the current situation, as some practitioners are in disagreement about it. If it is as we state, could it be corrected?

Baroness Walmsley: My response to the issue of consent is that it is nonsense that a young person who is deemed competent to decide to accept treatment could be overruled by his parents if he refuses. That is a legal contradiction. If he can decide to accept treatment that they do not want him to have, surely the corollary is that he must be able to decide to refuse treatment that they do want him to have.
	I understand that the Government also take that view, for which I applaud them, but they believe that the matter is already taken care of by amendments to existing law and by case law. As other noble Lords have done, I emphasise two things: first, the law is still not clear on the matter; secondly, practitioners in the field are certainly not clear on the matter. YoungMinds has plenty of evidence that practitioners are still accepting the view of the parents above the view of the young person. Without an independent advocate—a matter to which we will come later by virtue of the amendment tabled by the noble Baroness, Lady Howe—a young person in that situation is in no position to insist on his rights. Indeed, he can hardly be expected to know what his rights are, if practitioners do not know either and if the law is unclear.
	The intention of those of us who support the amendment is to make the law clear for everyone's sake, and, indeed, to back what the Government want and to try to facilitate that. As I understand it, the definitive legal opinion on the matter comes from a judgment of Lord Donaldson, in Re W (A Minor) Medical Treatment 1992. He said:
	"No minor of whatever age has power by refusing consent to treatment to override a consent by someone who has parental responsibility for the minor".
	That is pretty clear, no matter how much such a refusal is taken into account in making clinical judgments. Therefore, it needs putting right.
	Young people themselves and practitioners in the field need to be clear about their rights in this matter. The Government may feel that they can rely on case law for this, but that is clearly not working out there in the hospitals. They need to do something more to clarify the law as they and we want to see it and to make a clear statement that can be understood by everyone. Accepting the amendment would be that statement. It would also give the young person the protections of the Mental Health Act. I hope that the Minister will find himself in a position to do so.

Lord Carlile of Berriew: The noble Baroness, Lady Royall, expressed the generous wish that she had been on the committee. I, too, wish that, as I am sure that, had she been on the committee, she would have agreed, like everyone else, with all its conclusions bar one. I hope that she will agree with the conclusions that are drawn from the amendment. The scrutiny committee was absolutely clear that this was about protection. Our concern was that the law was not clear enough to ensure that 16 and 17 year-olds had the same protection as other groups when subjected to the possibility of compulsory treatment. I hope that the Government will take that on board and agree to go forward towards finding something to meet those concerns.

The Countess of Mar: The argument can be taken yet a step further. The Minister might be amused to know that I am going back to CFS/ME. Quite a lot of young people with CFS/ME are regarded as being mentally ill; they are regarded as being made mentally ill by their parents. Therefore, they are put on the at-risk register, and they are made wards of court. Then, they are forced to undergo psychiatric treatment. Those children can object as much as they like but, when they become a ward, in the face of the solicitor they have no argument.
	I do not know whether the Minister feels able to address that argument on this amendment. These children are not mentally ill; they are physically ill. I find it iniquitous that they are treated in the way that they are by some practitioners. It is a few practitioners, but it does a huge amount of harm to the young people, and it is lasting harm. One young man was admitted to the psychiatric unit of Great Ormond Street hospital, and it has taken him five years to speak to strange adults, so disillusioned has he been by the treatment that he received.

Lord Hunt of Kings Heath: It has been an interesting debate. I hope that I can allay the fears expressed by noble Lords. On the question of the law, we first point to the Family Law Reform Act as setting out such persons as are assumed to be capable of consent on their own behalf to any form of treatment. Where they do consent, a person with parental responsibility cannot override it.
	I have listened with interest to the comments made about case W. That is an old case; we think that more recent cases demonstrate the trend towards greater autonomy for young people. In view of the comments that I have heard tonight, I undertake to put that together and write to noble Lords, so that they can see how we have reached that view. Section 131(2) of the Mental Health Act builds on what we believe to be the law in relation to the Family Law Reform Act to make it clear that young people of 16 and 17 in addition can agree to being admitted to hospital for treatment and treated informally on their own behalf, regardless of the wishes of the person with parental responsibility.
	I also understand that it is important for us to be able to clarify the law if there is confusion among practitioners. The proper place to clarify the law would be through the code of practice. Our policy on the code is towards giving the views of young people greater autonomy. The draft revised code makes it clear that a 16 or 17 year-old should not be treated for mental disorder on the basis of consent from someone with parental responsibility. If they refuse to give consent or are unable to do so, they can be treated under the Mental Health Act. The code also identifies the cases, albeit likely to be rare, in which it may be appropriate to consider using Section 25 of the Children Act. The guidance in the code of practice also goes on to state that the views of a Gillick-competent child under 16 should not be overridden by someone with parental responsibility.
	We believe that the issues concerning consent for treatment of under-18s are best dealt with through guidance in the code of practice, where we can go into greater detail in this complex and important area than in legislation. It can also be updated more easily in line with developments in case law and professional practice. From what I have heard this evening, one can see the critical importance of ensuring that professionals are clear on what the law is and what their competence is to make decisions in that context.
	There is clearly support for 16 and 17 year-olds capable of expressing their own wishes to have their consent or refusal to consent to treatment and admittance to hospital for mental disorder protected in the Bill. Where they consent to admission and treatment in hospital for mental disorder, their consent should not be overridden by a person with parental responsibility for them. Where they do not consent to admission and treatment in hospital for mental disorder, their lack of consent should not be overridden by a person with parental responsibility for them.
	In view of what I have heard tonight, I will see whether the Government should table an amendment in this area. I will look at the issue of case law, in order to update the House on our current view of where the law stands, but I also commend to noble Lords the importance of using the code of practice as probably the most important way of influencing practitioners and informing them of the position with regard to 16 and 17 year-olds.

Earl Howe: It has been a helpful debate. I welcome the Minister's constructive response, and I am glad that he has taken on board the points that noble Lords have made. I look forward to receiving the letter that he has promised about the case law.
	I re-emphasise the difficulty that is often faced by parents in this situation. They are put between a rock and a hard place. As the nearest relative, when confronted by a choice between their child being sectioned and giving consent on behalf of the child, they will almost always give consent on behalf of the child. Either way, they are put in an absolutely invidious position for which the child is likely to blame them for the rest of his or her life. I note the Minister's view that this is code-of-practice territory. I will have a look at that point and at the draft code and see what it says, but perhaps we can reserve the right to come back to this at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 27:
	After Clause 20 , insert the following new Clause—
	"Children and young people
	After section 142 of the 1983 Act insert—
	"142A Admission to age appropriate setting
	In the case of an application for admission for assessment and treatment for a mental disorder, whether voluntary or not, in the case of any child or young person under the age of 18 years, a clinician with specialist training in child or adolescent mental health shall assess the needs of the child or young person and a PCT or equivalent health board shall provide for such services and accommodation as are sufficient for the particular needs of that child or young person.
	142B Medical assessment by a CAMHS specialist prior to imposition of compulsion for a child or young person
	In the case of a minor under the age of 18, who is admitted for assessment under section 2 or admitted for treatment under section 3, one recommendation as specified in these sections shall, except in an emergency where no child or adolescent mental health specialist is available, be made by a qualified child and adolescent registered medical practitioner.
	142C Clinical supervisor
	Wherever under any provision of this Act a responsible clinician is to be appointed if the patient is a minor under 18 that clinician shall, except in an emergency where no child and adolescent mental health specialist is available, be a child and adolescent mental health specialist.""

Earl Howe: I should like to continue with the theme of children and young people by proposing a number of further changes to the 1983 Act. The first one relates to the need to admit children and young people to a setting that is appropriate for their age. This is recommended in the National Service Framework for Children, Young People and Maternity Services. It was endorsed by the joint scrutiny committee on the 2004 Bill and acknowledged by the Department of Health in its response to the Bristol inquiry.
	The amendment would mean that an assessment of therapeutic benefit and safety of a young person would have to be carried out, and a decision made as to whether a place on a CAMHS ward or on an adult ward would be most beneficial. The amendment does not seek to demonise adult wards or staff working on adult wards. I understand that there are occasions when it is more appropriate in developmental terms for a young person to be on an adult ward. However, there is extreme concern among service users, carers and professionals that young people inappropriately placed on adult wards have been subject to harassment, abuse and have suffered significant traumatic stress—all of which has affected their ability to engage with services in future. Young people sometimes hide their symptoms because they are frightened that they will be sent back to an adult ward. The trauma is especially great when the child is under 16, which is why I propose that such children must always be admitted to a CAMHS ward. Admission to a CAMHS unit offers many benefits: the wards tend to be smaller, the practitioners have expertise in working with young people and their families, and the young people have access to education facilities.
	The next part of the amendment aims to ensure that unless there is an emergency, at least one CAMHS specialist is involved if there is any question of a young person under 18 being detained under the Mental Health Act. This proposal accords with a recommendation by the joint scrutiny committee on the 2004 draft Bill. The reason for it does not, perhaps, need explaining at any length. Children and young people are not the same as adults. The way that they process difficulty and distress is different and therefore they need specialist clinical support and knowledge if their needs are to be met and understood. That means having separate and distinct arrangements whenever assessments have to be carried out.
	The final part of the amendment is intended to ensure that the clinical supervisor of a child or young person admitted under compulsion is a CAMHS specialist. This proposal picks up a theme in the National Service Framework for Children, Young People and Maternity Services—standard 9—which states:
	"The different range and prevalence of serious disorders in childhood compared with adolescence means that services for these two broad age groups have to cater for a different range of needs, which need to be reflected in the specific skills of the staff working with them".
	Therefore, I feel very strongly that it would be appropriate for compulsory admissions to be subject to the same rigorous specific skills requirement.
	A great deal can be done for young people whose illness is diagnosed quickly. Teams working with young people, such as early intervention psychosis teams, with CAMHS staff attached to them, work to try to keep young people integrated into their homes and communities. The whole emphasis is on rehabilitation and recovery, encouraging patients to stay in education or to get a job, rather than the all-too-frequent pattern in adults, where there is a diagnosis of incapacity leading typically to stagnation and inactivity.
	Government policy is quite clear that CAMHS specialists work with young people aged 16 to 17, but that is simply not happening in parts of the country. Young people fall through the net with neither CAMHS nor adult mental health services owning them; in other areas there is an equally bad situation where adult services are deemed to be appropriate for 16 and 17 year-olds, when they are simply not appropriate. I hope that the Government will use the opportunity provided by the Bill to put in place some clear statutory requirement to protect children and young people who find themselves subject to the mental health system. I beg to move.

Lord Williamson of Horton: These are important amendments in relation to children and young people and they are what I would describe as "make improvements now" amendments. They are directed not at what the Government have proposed but at improvements that we would like to see now, because this Bill is before us. They are important in particular for young persons of 16 to 17 years of age. As we all know, many mental health problems, such as schizophrenia, occur for the first time often at that age—and it is important that they should be put in the best possible situation at that age.
	The motivation for the amendment is that we do not find in the legislation or draft legislation a sufficient differentiation of the care of children and young people from the care of adult patients. It is not at all a theoretical point. There are a good number of young people in adult mental wards. YoungMinds calculates that of almost 1,000 young people admitted to adult wards, the average length of stay was more than a month, and that in the three years to 2001 about 62 per cent of all under-18s admitted under the Mental Health Act went into adult wards.
	We do not complain about how adult mental wards are administered. We think that a great deal of good work is done there, but we claim that the cases should be specially assessed and that an age-appropriate setting is found.
	I am sure that the Minister is a little fed up with hearing about the Scottish legislation, but he has to; it is part of the lesson that we have to put across in this Chamber. The provision comes under Section 23 of the Mental Health (Care and Treatment) (Scotland) Act where accommodation sufficient for the particular needs of the child or young person is referred to. I am sure that the noble Lord, Lord Carlile, will not wish me to pass over the Joint Committee on the Bill, which recommended that a person of the kind referred to in this amendment should be within the Bill, and, specifically, that the Bill should stipulate that under 18 year-olds should be accommodated in age-appropriate facilities. There you have it.
	Finally, I think that the Children's Commissioner has put an embargo of Tuesday morning on the report he is just about to publish—a huge report—on this specific subject. Of course he must have expected that we would go on with our debate into Tuesday, and he was not far off the mark. But I believe that we are able just to refer to its existence. It is a substantial report. I do not know whether the Minister has read it yet. I have read it. It is an important report, which deals with the appropriateness, or not, of admitting children and young persons to adult wards. It has substantial information from individuals who have given evidence to the Children's Commissioner. The report will certainly influence the debate, whatever is decided here in the next 10 minutes. I draw the Committee's attention to it. It goes very strongly along the lines advanced by the noble Earl in this amendment, which I support strongly, and I hope that we can arrive in due course at a satisfactory solution on it.

Lord Patel of Bradford: It is a regrettable fact of the psychiatric provision in this country that mental health services that were formerly designated for adults are regularly employed for the reception of children and adolescents under the age of 18. Given that a number of adult psychiatric in-patient facilities can be fairly dysfunctional places on their own terms, they are unlikely to be suitable places for vulnerable children.
	The Mental Health Act Commission has applied its monitoring role in studying this matter in relation to detained patients. I rise to inform the Committee of some of the findings to give an indication of the scale of the problem.
	I must preface my remarks with a warning that I can only paint a partial picture: the Mental Health Act Commission is not empowered to collect data or monitor the treatment and care of informal patients; and I note that this amendment seeks, quite understandably, to provide protections to children and adolescents regardless of their legal status in the psychiatric system. I can only give an outline of the scale of the problem in relation to detained patients, and the Committee must be left uninformed of the total numbers of inappropriate admissions of children and adolescents across the psychiatric system as a whole. I would have that remedied for the future, but that is for an amendment later in our Committee's deliberations.
	In the usual course of its visits to hospitals between October 2004 and November 2006, the Mental Health Act Commission encountered 116 adult wards where one or two children under the age of 18 were detained. In all, 132 children were accommodated in such situations. I should highlight that 18 of these wards were psychiatric intensive care units where the most disturbed and dangerous adults are treated.
	Counting heads on the Commission's visits to hospitals cannot provide systematic data on the number of children on adult wards. In an attempt to get such data, the Mental Health Act Commission asked services to notify them of any occasion when a patient under the age of 18 was admitted to an adult ward under the detention powers of the 1983 Act. Between April 2003 and October 2006 we received 1,308 such notifications. That is a rough average of one admission every day over the three and a half year notification period. Furthermore, we are not at all convinced that we were notified of all such admissions under the Act. Voluntary notification exercises are inherently unreliable and, of course, these figures do not include those occasions when other routes—such as informal admission or the powers of the Children Act—were taken to ensure the admission of a minor.
	Just over half of these admissions to adult facilities were 17 year-olds, with most of the remainder being 15 or 16. There were rare but extremely concerning examples of younger children being admitted to adult facilities under the powers of the 1983 Act. These involved 22 14 year-olds, three 13 year-olds and two children under the age of 12. The care packages provided to these children and minors was often inadequate, despite the best intentions of staff. Let me provide noble Lords with some examples. While collating these examples, I was extremely alarmed and concerned. If I was a parent of one of these children, I would be expecting not only this House, but the Government to take immediate and urgent action.
	When the Mental Health Act commissioners asked ward staff whether there were any plans to transfer the young person or child to more appropriate surroundings within the next seven days, there were no such plans for nearly three-quarters of the children. That is 959 children with little or no prospect of moving from adult psychiatric wards. Only one-third of the children—421 of them—had a responsible medical officer who specialised in child and adolescent psychiatry. Of the 409 girls, more than three-quarters—322 girls—were detained on mixed-sex wards. As a parent, I find this situation completely unacceptable. Nearly one-third—412 children—did not appear to have an identified social worker. One-third—434 children—did not have an identified key worker. One in 10—126 children—did not have an identified primary nurse. It is also notable that half—that is, 648 of these admissions—were classed as emergency admissions, although only a small number—only 17—were admitted under the emergency powers of Section 4 of the Act. One such patient was 10 years old.
	In December 2004 the Mental Health Act Commission published a report on 18 months of data collected from April 2002. Noble Lords will recall that I spoke about some of the worrying results from this report on an earlier occasion. I highlighted the very significant over-representation of young people from black and minority ethnic backgrounds among those detained in adult facilities. Over one-quarter—27 per cent—of the young people detained on adult wards were from black and minority ethnic groups. Those of black African or black Caribbean origin appeared to be the most over-represented, with this group alone comprising 13 per cent of the notifications, compared with—according to census data—just 2.7 per cent of the child population in England.
	The general level of over-representation of black and minority ethnic children and adolescents detained on adult wards is in stark contrast to their representation among those accessing informal care with specialist in-patient CAMHS units, where they made up only 3 per cent of reported admissions. Very few staff working on adult wards had received any specialist training in working with children or adolescents with mental health needs. On a number of visits staff expressed concerns over their lack of skills and knowledge for working with this client group. In some cases it was reported that they felt they could only offer containment until a more suitable placement became available.
	There were often no arrangements for the continuation of young people's education, even for those aged under 16 and of compulsory school age. Appropriate plans for the continuation of education during their hospital stay were in place for only about 10 per cent of the young patients visited, rising to just over 18 per cent for those under 16. Only one-third had access to a programme of activities appropriate to their age and abilities.
	In order to humanise those statistics, let me give your Lordships just a couple of example of patients whom the Mental Health Act Commission has met in the course of its work. Miss A was 16 years old and detained under Section 22 in an adult psychiatric care unit in central England. She had been initially admitted to an acute adult psychiatric ward as an informal patient having been transferred there from the local general hospital following an overdose. While on the acute ward, she was placed under Section 5(2) to prevent her from leaving until she was assessed for detention under Section 2 of the Mental Health Act.
	She was then transferred to a mixed-sex adult psychiatric intensive care unit. Although staff had sought a more appropriate placement on an adolescent unit, none was available. Ward staff felt that they were providing merely containment. Although additional staff had been allocated to provide special observation in view of her vulnerability in an adult setting, they acknowledged that her special needs were not being met. Ward staff had not received any recent training in the care of adolescents and they had no access to a specialist child and adolescent psychiatrist for advice and guidance.
	Miss A told Mental Health Act commissioners that, although she was generally happy with the care provided by the doctors and nursing staff, she felt frightened by the other patients, whose behaviour she described as scary at times. She was also very unhappy that male staff members were allocated to provide close observation. She found that intimidating, especially as she had recently experienced a serious incident involving sexual assault prior to her admission to hospital. The alleged incident was currently under investigation.
	B was a 15 year-old Asian boy detained under Section 3 on an adult psychiatric intensive care unit. Three months before the Mental Health Act Commission met him, he had been transferred there from a nearby adolescent unit after having been assessed as requiring secure care as a result of his absconding, serious self-harm and suicide attempts. Secure care was not available under the local CAMHS service and, although he had been referred to an independent hospital out of the area that would have provided a specialist locked adolescent unit, no bed was available immediately.
	Not all of the permanent staff on the ward had been police-checked and there was no access to a copy of the Children Act or the relevant guidance volumes on the ward. When he had been on the local adolescent unit, B had received daily education sessions. Since being transferred to the adult intensive treatment unit, he was being offered only two education sessions a week. Staff who had received no specialist training to work with adolescents were finding it difficult to cater for his needs or provide appropriate activities. They agreed that it was not a suitable environment for a 15 year-old boy for almost four months, but said that there was a serious lack of ITU beds available nationally for adolescents. I have no information on whether there were any cultural, religious, dietary or linguistic issues attended to for that young Asian boy.
	I hope that those illustrations of how detained children and adolescents may be treated in adult services will help to emphasise the importance of the matters raised by noble Lords. I trust that the Minister will be persuaded to take urgent action on the matter.

Baroness Howells of St Davids: My amendment has been linked to Amendment No. 27. It is intended to ensure that children and young people under 18 receive services that meet their needs. I am obliged to all noble Lords who have spoken so eloquently, laying a foundation of appreciation in this Committee that children under the age of 18 should not be treated as though they were adults. Also listening to the debate is Kathryn Pugh, who comes from YoungMinds. She has been most supportive in drafting the amendment. I am sure that noble Lords would join me in expecting government, practitioners and parents to be united in ensuring that children get the best possible care to meet their needs.
	Can we assume that primary care trusts will not hesitate to follow the code of practice and implement the guidance for independent advocacy immediately? National Standards for the Provision of Children's Advocacy Services was published in 2002, informed by Article 12 of the UN Convention of Human Rights and the Human Rights Act 1998. As a result, we would expect that all young people now had access to the services detailed in this excellent document. Sadly, it is not the case.
	As the Committee discussed during the debate on principles, the establishment of guidance is no guarantee that what the Government regard as good practice will take place. We are all aware that financial pressures on national health trusts may prevent them purchasing services such as advocacy that are seen as a luxury rather than a basic right.
	We owe it to our young people to afford them independent advocacy. It provides a safeguard against the improper use of powers to detain or to treat them. With an advocate present, a young person can be sure that someone independent of their parents, carers or clinicians will communicate their interests and ensure their right of appeal. We know that in a culturally mixed society not everyone is aware of his or her own rights under the law. In the amendment that clarifies the right of 16 and 17 year-olds to refuse treatment and not have that refusal overridden by their parents, we heard that despite guidance and case law, professionals responsible for treating young people are confused as to who or what should be permitted. How can we then expect a 14, 15, 16 or 17 year-old to understand what treatment under compulsion means for them, and to know their rights?
	I illustrate this with the story of a young Asian girl, whom I will call S. She is 17, lives with her parents and was very depressed. She had self-harmed and taken overdoses, and was in regular contact with services. In one of her visits to mental health services, S talked about wanting to die. When asked if she was going to do anything to make this happen, she said she would if she got the opportunity. Due to concerns for her safety, she was admitted to hospital on a voluntary basis. This was a very daunting experience, as previously S had spent little time away from home.
	S was admitted to an adult ward and was in a room with more than one adult, where a fellow patient threatened her. Although she found the environment intimidating and wanted to go home, it was recommended that she stay in hospital to be monitored. Staff did not understand the cultural difficulties she had on the ward, nor her difficulties in sharing a room, the inaccessibility of somewhere safe to pray and the lack of understanding of her dietary requirements. She was told that if she tried to leave she would be placed under section. S felt that nobody was explaining what this meant to her and that she continued to be in an unfamiliar environment with no, or little, support. She felt uncomfortable around certain members of staff, one even asking her if she felt it fair to put her parents through this.
	A culturally competent advocate could have helped to improve the therapeutic alliance and helped staff to understand the importance of following her religious beliefs and of being in a private room. Her parents themselves would have been reassured to know that S had someone to whom she could relate, who both understood the system and was in her corner. Feeling more in control of the situation may have prevented S from disengaging with services and meant that in the long term she continued to ask for help before she was in crisis.
	We have heard from other noble Lords about the over-representation of black and minority-ethnic patients on in-patient wards and under compulsion. I echo the remarks of those who have commented on the fear of many in the black community that reaching out to mental health services will mean being sectioned. I am positive that giving people the right to independent advocacy will go some way towards reassuring young people, their families and communities that their voices will be heard and their rights protected. I hope that this reassurance will help young people to seek help earlier before they reach a crisis, and that it may therefore even help to prevent admission.
	It is ironic that the Mental Capacity Act 2005 enshrines a right to advocacy for people lacking capacity through the Independent Mental Capacity Advocacy Service, which is due to be implemented in April 2007. It is unacceptable for some patients who lack capacity to be awarded a statutory right to an advocate, while those who lack capacity and who are detained for their mental disorder do not have a similar statutory right to one. It is even more ironic when we consider that the Adoption and Children Act 2002 gives the right to advocacy to young people who are looked after by the state. Yet we do not guarantee young people with a mental health problem the right to such a service, despite their vulnerability.
	The number we are talking about is small; according to the Mental Health Act Commission, it is about 260 young people a year, although we cannot estimate the number of young people who, as in the example I have just given, are threatened with detention and comply through fear. I and many others have welcomed the Government's excellent policies to improve mental health services for children and young people, and I ask that the Government and this Committee regard the amendment as being within the spirit of the National Service Framework for Children and Every Child Matters and accept it as a logical and necessary addition to the 1983 Act.

Baroness Walmsley: On behalf of Members on these Benches, I support both the amendments, which would ensure that a child would be treated in an appropriate place after an appropriate assessment by a suitably qualified person and would have the necessary help to understand his rights and to express his views. This is a very laudable set of objectives and, although it would cost a little money in the short term, it would most certainly save the Government a great deal more money in the long term.
	I hope the Minister will note that we are not trying to demonise adult wards, as the noble Earl, Lord Howe, said. Indeed, Amendment No. 27 would allow for 16 and 17 year-olds to be admitted to such a ward if the assessment determined that it would be in their interests and if the patient was happy with that. I must say at this point that references to the child's best interests seem remarkably absent from the Bill. Perhaps that is because it is really a Home Office Bill and not a Department of Health Bill.
	There seems to be nothing in the Bill about the duty of care to underage patients as children first and foremost—individuals who are different from adults in their needs, their level of vulnerability and their response to stressful situations. However, it is not beyond redemption, which we are seeking to achieve through the amendments. It is vital that children are treated in age-appropriate settings, partly because of the quality of treatment they will get there and partly because that treatment and that experience will colour their attitude to treatment later on. If they disengage from the process because of a bad experience when they are young, how will we get them to accept treatment voluntarily when they get older?
	However, that is not the only reason. Child protection is a major factor. How can we countenance putting young people in situations where they can be abused, where illegal drugs are often widely and cheaply available on the ward, and where the staff are too busy to watch over them at all times? It is happening all the time. Here are some real examples given to Dr Cathy Street, research consultant to YoungMinds.
	A young woman was admitted at the age of 14 to an adolescent unit for self harm and attempted suicide. She was discharged, but continued to self harm, with regular visits to A&E. Eventually, she was placed under section at the age of 15. No bed was available in the adolescent unit, so she was taken to the adult ward, where she was placed on suicide watch. She was promised an advocate but no one came to visit her. She was discharged very suddenly, placed in a cab, and the driver was told to take her to the social services offices. The driver got lost, so the young woman directed him to a youth project she knew. Project workers at the group, who were horrified that she had been discharged so abruptly and so recently from suicide watch, called social services, which placed her with a foster family she had never met. She was finally readmitted to an adolescent unit, where it was recommended that she should receive long-term therapeutic care.
	A young man, aged 15, was psychotic. The police were called to help with the admission, but, as no beds were available in a specialist unit, the police offered to keep him in a cell until a bed could be found. Fortunately, his mother refused to let this happen, so the young man was sedated for 24 hours while the arguments about where he should go raged on. He was admitted to the adult ward, which refused to keep him for more than 24 hours. Eventually, the PCT agreed to fund an independent place for six weeks, but no more. When he came home he still needed in-patient treatment, but it took nine months for him to be admitted to an adolescent unit.
	My final example is a young man aged 15 who tried to kill himself by jumping in front of a car. He was admitted to A&E for 24 hours while staff looked for a bed, but the only place was on an adult ward, where he was the youngest person by 20 years. He was on the ward for five days until a bed was found. These experiences are not unique.
	This is no way to treat young people, and I gather that it is all down to funding. Indeed, it is another example of a postcode lottery, since we know that the south of the country is much better provided with children and adolescent beds than the north. Something must be done to ensure that the number of child and adolescent beds per million of population recommended by the Royal College of Psychiatrists is available in all parts of the country. We also need more effort to provide services in the community to prevent the need for young people going into hospital at all.
	We know that the Children's Commissioner, Sir Albert Aynsley-Green, is very concerned about children going into adult units. He is about to publish a research report on the matter, which I understand makes horrifying reading. I have had time to read only the executive summary so far. There is evidence that children not only feel vulnerable to aggression and sexual harassment in adult wards, but also experience these things not infrequently.
	In relation to the skills requirements under Amendment No. 27, why are we lagging behind Scotland, where the Mental Health Act 2003 specifies age-appropriate supervision by CAMHS specialists? Why is the National Service Framework for Children and Young People not being adhered to? Standard 9, paragraph 9.8, states:
	"The different range and prevalence of serious disorders in childhood compared with adolescence means that services for these two broad age groups have to cater for a different range of needs, which need to be reflected in the specific skills of the staff working with them".
	That is clear, but it does not always happen.
	Finally, Amendment No. 27 requires age-appropriate assessment by a CAMHS specialist, which seems only common sense in the light of what we have just heard. On Amendment No. 41 and advocacy, we are talking about very vulnerable young people who are not in their own homes. Children similar to those in public care in children's homes or foster settings have a right to a dedicated social worker and someone who acts as an advocate. Why, then, do children in mental health settings not always receive the same right? The number of compulsorily detained children is small and organisations looking into the matter have calculated that the cost of providing this service to them would be less than £100,000 a year. If the service were extended to all children and adolescents in CAMHS units, which is desirable but not covered by this amendment, the cost would still be only about £1 million per year, a very small amount compared to the potential benefit. If the Government believe these figures are incorrect, I hope that the Minister will give us his calculations and tell us his source.
	We should not be relying on a child's parents to express his views and ensure he has all the information he needs to understand what is happening to him. Most parents are not equipped to do this, and what of the child who has no parents, or at least none in a position to help him? These are some of society's most vulnerable children and we need to ensure that they are treated better.

Baroness Masham of Ilton: I have a very brief speech. Throughout the National Health Service there have for many years been problems of accommodation for adolescents. It is difficult to treat adolescents with young children and babies in paediatric wards, and it is equally inappropriate to treat young people in adult wards, as has been said. I want to give noble Lords a few positive examples.
	There is a splendid organisation called Body and Soul providing support for people with HIV and AIDS. In its work it has found that adolescents need their own space and help, away from children and adults. A hospice for children in Yorkshire has made a section for adolescents needing hospice care. It was so important for them to have their own accommodation with their age group. In young offender institutions, adolescents are now separated from the over-18s. It is even more important for young, mentally ill adolescents to have their own wards. Many of them have problems associated with puberty. Putting young people in adult wards with mentally ill adult patients could be to put them at risk. With so much emphasis placed these days on health and safety, who, can I ask the Minister, does the risk assessments for these young and vulnerable adults, especially given staff shortages in many hospitals at night? Why should mentally ill young people, who will have more problems than anyone else, not be treated in the same way as other groups such as the ones I have mentioned—and whose treatment I have found to be satisfactory?

Lord Carlile of Berriew: I apologise for speaking and thereby lengthening the debate at this stage of the evening, but in my view these amendments are among the most important to this Bill. They are consistent with the views of the joint scrutiny committee. It was our view that it was self-evident, as well as being a matter of evidence, that young people should be in age-appropriate facilities and that they should have doctors who are experienced in treating young people.
	I want to reflect for a moment on my very close observations some 10 years ago of a young girl who went into a hospital suffering from serious depression and anorexia. On the advice of a reputable consultant—this was not in the countryside, but in London—she was sent to an adult unit. There she was treated heavily with drugs. After about four months, and as a result of parental demands made by parents who in the early stages were completely ignorant of the mental health sector, she was moved in a stupefied state to the adolescent unit at the Bethlem hospital, part of the Maudsley hospital. Some time later, the consultant who had professed expertise in treating that girl, though not a specialist CAMHS doctor, was suspended by the General Medical Council for sexual impropriety with a young female adult patient. The life of that girl was saved in the CAMHS unit at the Bethlem hospital because she was treated in an age-appropriate environment by highly specialist consultants with enormous skills. She emerged from that unit to receive outpatient treatment, and was given the early stages of that by a CAMHS specialist consultant. Unfortunately, he too was disciplined at a later stage by the General Medical Council for inappropriate sexual conduct—in this case, toward young female patients.
	I can, if necessary, provide every detail of that story, having observed it at the closest quarters possible. It shows how dangerous it can be for anything other than the closest scrutiny—at an age-appropriate and place-appropriate level—to be put upon every single case involving a child. In many cases, teenagers who face the kind of situation I described are mature in some ways, but extremely immature in others. It emphasises the importance of them having age-appropriate treatment in all respects. The noble Lord, Lord Patel of Bradford, gave us a helpful catalogue in summary form—I am sure that it could have lasted for volumes, or hours—of other cases bearing out the example that I observed at such close quarters and was describing.
	I would be completely content if, 10 years after the events I describe, having made my observations, I could sense any comfort or feel that things have improved as a result of what people who scrutinise these matters daily—like the noble Lord, Lord Patel, or Sir Albert Aynsley-Green, the Children's Commissioner—may say. I see absolutely no evidence of that improvement.
	If we are serious as legislators in the lip-service that we give to having the interests of adolescent, mentally ill children at heart then we have to do something about it. The one thing we could do is to place a statutory obligation on the services—not just targets, but statutory obligations—about dealing with children in settings and with medical care that are both age-appropriate. Of course, there will be emergency circumstances. The joint scrutiny committee dealt clearly with that by providing a solution to emergency circumstances. For example, if a child in rural mid-Wales becomes acutely mentally ill, it may take a day or two to put them in a suitable hospital environment. But surely, that it should take more than a day or two could never be justified.
	I shall be extremely disappointed if we have nothing more than an anodyne response on this issue. The power of this debate has been strong, and there has been unanimity around the Chamber, which, as I said, confirmed that of the joint scrutiny committee. I hope that we shall hear a positive response.

Lord Hunt of Kings Heath: Well, I hope that this will not be an anodyne response. I listened to noble Lords as they graphically described some of the issues that face young people, and I endorse the comments about the problem of young people being inappropriately placed on adult wards. There is no question that, for many years, this has represented a major challenge for mental health services. It will carry on being a challenge, although I am disappointed that most noble Lords did not seek to reflect on some of the extra investment and improvements that were made to these services in recent years.
	I will come on to the actions that the Government have taken to improve services, given how noble Lords have described the problems. But the basic argument is that this is not the only time that your Lordships have sought to propose amendments that essentially talk about services. We have a real problem with amendments to the Bill that seek to specify the services to be given. I do not believe that is consistent with health service legislation.
	There are many practical issues that would follow if one singled out a particular service, put it in the Bill and said, "That must be provided", alongside all the other demands that are made on NHS services. Let us go through all the Oral Questions that have been tabled, and that are likely to be tabled over the next three months. There is a flavour about all of them; they all tend to say that the Government should do more to provide more services in this or that area. Of course, we seek to improve health services all the time, but there is a genuine issue about enshrining in legislation the provision of certain services for certain people in comparison with the general duty—

Lord Carlile of Berriew: I do not begin to understand the point the Minister is making. If what he is saying is right, why have the Children Act? Why have services for any group? Why have a Mental Health Act, for that matter? Is he really saying that because one cannot be completely even-handed with all interest groups, one should simply write them all off?

Lord Hunt of Kings Heath: That is not what I am saying at all. Essentially, the Mental Health Act is concerned, as it ought to be, with the legal processes around mental health, mental disorder, compulsion and treatment. It is much more difficult to move on from there to specifying services to be provided to a certain group. That is inconsistent with the way we develop legislation in relation to the health service and to the responsibilities of the National Health Service to provide certain services. Noble Lords can shake their heads, but simply specifying that in this case there is an absolute statutory provision that must be provided by the NHS, come hither nor tither, has clear practical consequences. That is why we believe that the approach of developing and improving services, using the code of practice to influence the way those services are developed, has to be the right way through.
	I assure noble Lords that the further improvement of CAMH services is one of our priorities. It features in the public service agreement for the Department of Health. We are working towards the achievement of comprehensive CAMHS in every area of the country by the end of 2006, and wish to see it maintained thereafter. CAMHS regional development workers continue to assess both the NHS and local authorities in meeting those challenges. The commitment to improve CAMHS is backed up by significant additional funding—approximately £300 million in the years 2003-04 to 2005-06, payable to local authorities in the form of a CAMHS grant, and direct to primary care trusts.
	We have made further additional funds available: £134 million in 2006-07 to the NHS and local authorities for the development of CAMHS. The children's national service framework, the CAMHS standard, gives guidance on what is to be expected in a comprehensive CAMH service. It states:
	"All children and young people, from birth to their eighteenth birthday, who have mental health problems and disorders have access to timely, integrated, high quality, multi-disciplinary mental health services to ensure effective assessment, treatment and support, for them",
	their parents or carers, and other family members. I could go on.
	Considerable progress has already been made in bringing CAMHS out from under the shadow of adult mental health. CAMHS now has a profile and a priority of its own. Benchmarking surveys of provision have been completed. There is a strong feeling that central investment has led to a major change on the ground, facilitating a significant increase in multi-disciplinary and joint working across professions. My understanding, from a CAMHS mapping exercise, is that between October 2005 and February 2006 the number of CAMHS teams increased by 16 per cent over 2003, staff by 11 per cent compared with 2004 and new cases seen increased by 12 per cent over 2004.
	The amendment seeks to enshrine what is already good practice. We know it is not perfect. We know there is a long way to go, but improvements are taking place and will continue to take place. Of course, we want to eliminate the use of adult psychiatric wards for adolescents, except where more mature, independent adolescents prefer to be admitted to a ward specialising in treating young adults. That was communicated to the service in a DH/DfES report. We began collecting detailed information about the use of adult psychiatric wards for children and adolescents in April 2005 to allow performance management of that aspect of the service. The draft revised code of practice states that where possible children and young people admitted to hospital should be accommodated with others of their own age group in children's wards or adolescent units, separate from adults, and with access to CAMHS. That is an issue that should be tackled through guidance and monitoring, rather than through legislation.
	As I have said, there is much more to do, but at least we are now building on a foundation of concerted improvements and investments that have taken place in the past three years. I sympathise with all the points made about defects in the current service, but I am absolutely convinced that the way forward is to build on current good practice through the normal processes of the NHS and local government.
	I turn briefly to the comments of my noble friend Lady Howells on Amendment No. 41. She certainly made a powerful case. We are considering how we can make advocacy more widely available. The draft code has much to offer in that area. I can assure my noble friend that I am giving this matter every consideration, but I suggest that we might return to the subject when we debate Amendments Nos. 38 and 39.

Earl Howe: The length of this debate has reflected the undoubted strength of feeling that exists on what is an extremely important set of issues. I am grateful to all noble Lords who have taken part in it. We have heard some extremely powerful contributions.
	In view of the hour, I shall not say much. I was disappointed with the Minister's reply. He balked at the idea of placing a requirement for particular services on the face of the Bill and said that in his view that was not appropriate. It is as if children do not deserve special protection in a service which is not always assiduous in applying the safeguards that children are entitled to expect from it. We can have all the national service frameworks and codes of practice and guidance to be imagined but the fact is that these are not delivering. We will see more on this theme tomorrow in the report from the Children's Commissioner, which I think is strictly embargoed until tomorrow morning although a number of us have seen advance copies.
	I found the story recounted by the noble Lord, Lord Carlile, particularly sobering. It called to mind the very simple point which I do not think has been mentioned so far in the debate but it is a basic one; namely, that if a child is admitted to a CAMHS ward, there is much less chance of that young person sharing a ward with a detained paedophile—we hear all too often of that kind of unpalatable incident.
	I feel this is an issue to which we may very well need to return at a later stage but for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Royall of Blaisdon: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at 11.11 pm.